evolutionary, dynamic or contemporary interpretation in

© Dimitris Liakopoulos, 2019 | doi:10.1163/23525207-12340037This is an open access chapter distributed under the terms of the CC-BY-NC 4.0 License.

The Chinese Journal of Global Governance 5 (2019) 21–68

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Evolutionary, Dynamic or Contemporary Interpretation in WTO System?

Dimitris LiakopoulosFull Professor of European Union Law at the Fletcher School—Tufts University, USA and Full Professor of International and European Criminal and Procedural Law at the De Haagse Hogenschool—The Hague, the [email protected]

Abstract

The evolutionary interpretation of a norm presents a similar nature—even if obvi-ously not identical—to the modification of the law, which is a process that follows an interpretative method that must be particularly careful not to be in contrast with the intention of the states concerned by the rule. Interpretation in practice, in speciem in the World Trade Organization becomes prescriptive to descriptive, since our aim will be to see the theme of evolutionary interpretation through the jurisprudence of the Organization.

Keywords

WTO – evolutionary interpretation – VCLT – international economic law

1 Introduction1

By now it is not surprising that the World Trade Organization (WTO) involved in times not a relaxation, but a stiffening of the contractual constraints in a sector—that of commercial policies—in which the states had always shown to prefer complete freedom of maneuver.2 To a system in which the resolution of

1 The present work is updated until January 2019.2 P. Van den Bossche, W. Zdouc, The law and policy of the WTO, Cambridge University

Press, Cambridge, 2013. M. Matsuhita, T.J. Schoenbaum, P.C. Mavroidis, The World Trade

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disputes was based on the agreement reached by diplomatic means, the mem-bers of WTO have replaced a model that is apparently much less flexible, which supports the possibility of negotiating a compromise amicably that of relying on a mechanism of almost judicial nature, to whose intervention foreseen by the treaty establishing the organization none of the states parties can escape. The compulsory jurisdiction of the judicial bodies provides for two degrees of judgment, exercised by a Panel and the Appellate Body, respectively, and the rulings of these (as well as the approval by the Dispute Settlement Body (DSB)) depends on the possibility, for one state that considers itself injured in one of the rights recognized by the agreements making up the WTO system,3 to adopt sanctions aimed at the cessation of violation. We are faced with a special legal system (lex specialis), which replaces the discipline of reactions to wrongdoings generally valid internationally a set of rules that restrict parties’ field of action, regardless of the position one wants to assume about the real nature of this self-contained regime, i.e. with regard to its closure (definitive or only temporary) with respect to the customary law of responsibility,4 the relevance of the work cannot be denied of which the judge of the organization was invested, depending on him the legitimate recourse to countermeasures, emblem of the private character of international justice. It is easy to under-stand how this abandonment of the principle of self-assessment of the law which remains pre-eminent at the international level has pinned the atten-tion of scholars on the practice of carrying out the judicial function within the organization, to analyze both the conditions and internal consistency.

The history of Doha Round, the inconclusive cycle of negotiations that has continued since 2001,5 shows how diplomacy is not always able to pro-vide an effective response to the new demands and needs that the passage of time brings out. In such cases the solution must be found within the system itself, and it is up to the law to make up for the failure of political initiative.

Organization. Law, practice, and policy, Oxford University Press, Oxford, 2015, pp. 5ss. C. Heidfeld, Die denzentrale Durchsetzung des WTO-Rechts in der EU, ed. Nomos, Baden-Baden, 2012.

3 This is, to be precise, the so-called covered agreements, i.e. instruments annexed to the Mar-rakech Agreement (establishing the World Trade Organization), the exhaustive list of which appears in Annex 1 of the Dispute Resolution Agreement, which is itself an annex to the WTO Agreement.

4 G. Arangio-Ruiz, “Fourth report on state responsibility”, in Yearbook of the International Law Commission, 1992, II/1. B. Simma, D. Pulkowski, “Of planets and the universe: Self-contained regimes in international law”, in European Journal of International Law, 17 (3), 2006, pp. 484ss.

5 D. Chakraborty et al., “Doha Round negotiations on subsidy and countervailing measures: Potential implications on trade flows in fishery sector”, in Asian Journal of WTO & Interna-tional Health Law & Policy, 6, 2011, pp. 202ss.


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This can be done, at best, through interpretive activity. But how? My goal is to find out, by analyzing the WTO system, how interpretation can be used and, above all, was used in order to adapt the system to changed circumstances.6 Because it is certainly true that art. 3.2 Dispute Resolution Understanding (DSU) imports the customary interpretative norms into the system,7 but it is not at all clear that their use by the trade judges is exactly the same as that of other international jurisdictions. For example, the choice between a fixed and a mobile reference to articles 31–33 of the Vienna Convention on the Law of Treaties of 1969 (VCLT) (the choice is between the provisions as they were at the time of the signing of the Marrakesh Agreement and those in force when the judicial action is exercised) may depend on how we understand WTO and its role.8 As is easy to understand, these are two things linked to each other: the purpose of a regime, its characteristics and, lastly, its nature can, on the one hand, be understood by investigating the institutional aspects and, on the other, shed light on the problem of the degree of autonomy it enjoys com-pared to general international law. It turns out that the conventional idea (taken back to article 3.2 DSU that nothing can be added and removed from the law of WTO) is only partially truthful. There is indeed a difference whose contours are not however, well clear between the modification of WTO agreements and the imbalance of rights and obligations inscribed in them: only the second, narrower category of the first, would be prohibited. The system is therefore not as sclerotic as anyone would want. It is the space offered to the evolution-ary interpretation.9 A space that would be the greater the “constitutional”

6 P.M. Dupuy, “Evolutionary interpretation of Treaties: Beyond memory and prophecy”, in E. Cannizaro (ed), The law of treaties beyond the Vienna Convention, Oxford University Press, Oxford, 2011, pp. 124ss.

7 J. Hillman, “An emerging international rule of law?—The WTO Dispute Settlement System’s role in its evolution”, in Ottawa Law Review, 42, 2010–2011, pp. 270ss.

8 For details and analysis see: G. Noute, Treaties and subsequent practice, Oxford University Press, Oxford, 2013, pp. 224ss. M. Fitzmaurice, O. Elias, P. Merkouris (eds), Treaty inter-pretation and the Vienna Convention on the Law of Treaties, 30 years on, Martinus Nijhoff, The Hague, 2010, pp. 9ss. G. Noute, Treaties and subsequent practice, Oxford University Press, Oxford, 2013, pp. 224ss. E. Bjorge, The evolutionary interpretation of treaties, Oxford Univer-sity Press, Oxford, 2014. O. Corten, P. Klein, The Vienna Conventions on the law of treaties. A commentary, Oxford University Press, Oxford, 2011. O. Dörr, “Article 31. General rule of inter-pretation”, in O. Dörr, K. Schmalenbach (a cura di), Vienna Convention on the Law of Treaties. A commentary, Springer, Heidelberg-New York 2012, pp. 536ss. M. Samso, “High hopes, scant resources: A word of scepticism about the anti-fragmentation function of article 31 (3) (c) of the Vienna Convention on the Law of Treaties”, in Leiden Journal of International Law, 24, 2011, pp. 5ss. R. Gardiner, Treaty Interpretation, Oxford University Press, Oxford, 2008.

9 G. Shaffer, J. Trachtman, “Interpretation and institutional choice at the WTO”, in Vanderbilt Journal of International Law, 52, 2011, pp. 104ss. (critiquing the panels’ approach to balancing,


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organization was, but it should be underlined how the evolutionary impulses of the judge are linked to the will of the members to validate or to stimulate, materially, the change of norms: a will that on the one hand acts as a factor of political legitimacy, and on the other it establishes the normative data that is needed to be referenced.

2 WTO: Interpretation of the System and Interpretation in the System

The attitude of the “custodians” of integrity of legal instruments belonging to WTO10 Agreement has been marked by a courageous demand for autonomy similar to that which has long been the spokesman of the Court of Justice of the European Union (CJEU). The natural habitat of the judge of the organi-zation is represented by that textual interpretation as the only possible hori-zon for a treaty that, like that of WTO,11 would be nothing if not the normative framework within which to conceal mutual concessions: it goes without say-ing whereas in this context any distancing from the letter of the treaty would entail a violation of the rights of the parties.12 The duty of a treaty interpreter is to examine the words of the treaty in order to determine the intentions of the parties. This should be done in accordance with the principles of treaty inter-pretation set out in article 31 Vienna Convention of the Law of Treaties (VCLT) of 1969.13 But these principles of interpretation do not require the imputation into a treaty of words that are not there or the importation into a treaty of con-cepts that were not intended.14

noting that in one leading case, the Appellate Body appeared “to proceed by a kind of gestalt (…)”.

10 I. Van Damme, Treaty interpretation by the WTO Appellate Body, Oxford University Press, Oxford, 2009.

11 Y. Shany, Assessing the effectiveness of international courts: A goal-based approach, Oxford University Press, Oxford, 2014.

12 J.P. Kelly, “Judicial activism at the World Trade Organization: Developing principles of self-restraint”, in Northwestern Journal of International Law & Business, 22, 2002.

13 M. Samso, at 5.14 Appellate Body report, India-Patent Protection for Pharmaceutical and Agricultural

Chemical Products (India-Patents), WT/DS79/R of 24 August 1998 par. 45. see also: M. Kennedy, WTO dispute settlement and the TRIPS agreement. Applying intellectual prop-erty standards in a trade law framework, Cambridge University Press, Cambridge, 2015. A. Taubman, W. Hannu, W. Jayashree, A handbook on the WTO TRIPs agreement, Cam-bridge University Press, Cambridge, 2012. K.W. Lee, “Suspending Trips obligations as a viable option for developing countries to enforce WTO rulings”, in Asian Journal WTO & International Health Law & Policy, 9, 2014, pp. 228ss.




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The appeal body thus responded to the Panel’s statement that “(…) the protection of legitimate expectations of members regarding the conditions of competition is a well-established GATT principle”,15 thus reiterating the orthodoxy interpretation that sees in the words of the treaty the only reliable testimony of the intentions of the states that drafted it. On closer inspection, however, it is clear that the Appellate Body only wished to validate the idea16 that all interpretative instruments, and not just textual ones, must have their own point of reference in the letter of the treaty. This is a mere application of the rules of interpretation provided for by VCLT17 and by the Appeal Body referred to above, so that even the importation of external concepts into the treaty, if carried out in accordance with these rules, entails only the recall of what was “intended”. Nothing strange: it is the fundamental (and irremissible) postulate of interpretation of the idea that the text always reflects the meaning that the parties wanted to give it.

There can be no doubt about the willingness of member states to import the aforementioned VCLT18 rules into the WTO system, given the explicit refer-ence made by art. 3.2 Dispute Resolution Understanding (DSU).19 To be pre-cise, indeed, this article provides that any dispute that should arise between the parties will be resolved by the judge with the help of customary rules of interpretation, which would correspond, for the most part, to those codified in the convention on treaty law. This is the opinion of many international tri-bunals, starting with the International Court of Justice (ICJ), and the judge of commerce has repeatedly endorsed this conviction.20 In fact, both the Panels

15 Panel report, at par. 7.20.16 C.D. Ehlermann, “Reflections on the Appellate Body of the World Trade Organization

(WTO)”, in ASIL Proceedings, 2003, pp. 79–81. For the exceptions see: C.F. Lo, “Good faith use of dictionary in the search of ordinary meaning under the WTO Dispute Settlement Understanding”, in Journal of International Dispute Settlement, 1, 2010. I. Van Damme, “On “good faith use of dictionary in the search of ordinary meaning under the WTO Dispute Settlement Understanding”—A reply to Professor Chang-Fa Lo”, in Journal of Interna-tional Dispute Settlement, 22, 2011, pp. 234ss, which underlines, among other things, the adhesion of Panel and Appellate Body to the “holistic” interpretation of articles 31–33 of the Vienna Convention.

17 E. Bjorge, The evolutionary interpretation of treaties, Oxford University Press, Oxford, 2014.18 O. Corten, P. Klein, The Vienna Conventions on the law of treaties. A commentary, Oxford

University Press, Oxford, 2011.19 P.T. Stoll, “World Trade Organization, Dispute Settlement”, in R. Wolfrum (ed.), Max

Planck Encyclopedia of Public International Law, Vol. X, 2012, pp. 968, par. 1.20 Appellate Body report, United States-Standards for Reformulated and Conventional Gas-

oline (US-Gasolin), WT/DS2/AB/R of 29 April 1996, par. 16–17 (art. 31 CVLT); Appellate Body report, Japan-Taxes on Alcoholic Beverages (Japan-Alcohol), WT/DS8/AB/R, WT/DS1O/AB/R, WT/DS1 I/AB/ of 4 October 1996, par. 104. See, A.R. Maggio, Environmental


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and the Appellate Body have made extensive use of articles 31–33 of VCLT21 in determining the meaning of the provisions contained in the covered agreements, helping to reinforce the idea of the universal applicability of those interpretative rules. However, it is legitimate to ask whether, in reality, the WTO system has not developed its own interpretative methodology, or whether, as it is perhaps more correct to say, the parties did not intend, by negotiating the treaty, to give the nascent organization its own specificity, making it capa-ble of partially deflecting customary law in favor of a peculiar approach to interpretation.22 In saying this, I am not referring, of course, to the cases of misapplication of an interpretative principle which, in the intentions of the WTO judge, had (presumably) to reflect the dictates of VCLT.23 A complex sys-tem such as that of WTO develops judicial practices that are suitable to meet its institutional needs and achieve the objectives it sets for itself, practices that may overlap only to a limited extent to those implemented outside the sys-tem. The controversial distinction between treaty-law and treaty-contracts, moreover, has been repeatedly brought to the attention of those who believe that from it can derive consequences for the interpretation24 of an instru-

policy, non-product related process and production methods and the law of the World Trade Organisation, ed. Springer, Berlin, 2017.

21 O. Dörr, at, 536.22 See in argument: G. Distefano, “L’interpretation évolutive de la norme internationale”, in

Revue Generale de Droit International Public, 115, 2011.23 For example the Appellate Body stated that: “(…) where the meaning imparted by the text

itself is equivocal or inconclusive, or where confirmation of the correctness of the reading of the text itself is desired, light from the object and purpose of the treaty as a whole may usefully be sought” (Appellate Body report, United States-Import Prohibition of Certain Shrimp and Shrimp Products (US-Shrimp),WT/DS58/AB/R of 12 October 1998, par. 114). D. König, “The enforcement of the international law of the sea by coastal and port States”, in Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 62, 2002, pp. 12. In this case, the United States had banned the import of shrimps and products derived from countries whose vessels were dedicated to fishing for such species using techniques that do not comply with US standards in force for the conservation of sea turtles. While admit-ting the possibility of invoking art. XX of GATT to justify unilateral measures implement-ing an internal environmental policy, the Appellate Body considered that in this case the conditions set forth in the chapeau of art. XX and thus rejected the US appeal (WTO, WT/DS58/AB/R, 12 October 1998, United States-Import Prohibition of Certain Shrimp and Shrimp Products, AB-1998-4, Report of the Appellate Body, in International Legal Materi-als, 38 (1), 1999, pp. 121ss). C.C. Joyner, Z. Tyler, “Marine conservation versus international free trade: Reconciling dolphins with tuna and sea turtles with shrimp”, in Ocean Develop-ment & International Law, 31, 2000, pp. 142ss.

24 T. Helemersen, “Evolutive treaty interpretation: Legality, semantics and distinctions”, in European Journal of Legal Studies, 6 (1), 2013, pp. 128ss.




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ment belonging to one or the other of the categories.25 With this I do not want to downplay either the pragmatic approach (which others have already embraced26) or the merely ideal.

It would not make too much sense to do it: perhaps that the courts do not contribute, with every pronouncement in line with this thesis, to strengthen not only the conviction, but directly the reality that is the object. However, this does not mean that the aforementioned articles of VCLT are open to the attri-bution of multiple meanings.27 This is also an aspect of reality of the Vienna rules on interpretation: if their form is customary, their content does not seem to be. Or rather, it is certainly a matter of customary norms, but it can be assumed that their meaning is mute without following the pattern of succes-sion of rules over time and, therefore, without satisfying the need to identify a praxis and opinius juris of states, which would make it very difficult to deter-mine them, since, in my opinion here more than elsewhere, states are willing to lean against the most convenient interpretation in the game that requires them to justify their positions by supporting according to our opinion the idea that the articles in question are indeterminate or empty of meaning.28 I feel that different times and (juridical) places can dress the interpretative norms of the Convention of different meanings. At this point it is appropriate to ask: what is the place and time of the Marrakesh Treaty and its annexes?

Articles 31–33 VCLT29 can receive, over time, different interpretations but equally valid and remembering that the customary norms on the interpretation

25 For example, and with specific reference to the law of WTO, see what was claimed by Jackson, who believes that the multilateral structure of International Trade Organization could in principle lead to a change in the interpretative rules of the Convention Vienna, designed on the basis of the contract-contract: J.H. Jackson, Sovereignty, the WTO, and changing fundamentals of international law, Cambridge University Press, Cambridge 2006, pp. 184–185. However, there are those who, while recognizing this distinction between types of agreements—or rather, the similar one between types of obligations, integral or reciprocal—attributes to it a minor and, so to say, more conventional scope, due to the provisions of the 1969 and the Draft of Articles on the International Respon-sibility of States: J. Pauwelyn, Conflict of norms in public international law. How WTO law relates to other rules of international law, Cambridge University Press, Cambridge 2003, pp. 52ss.

26 M. Slotboom, A comparison of WTO and EC Law. Do different objects and purposes matter for Treaty interpretation?, ed. Cameron May, London, 2006.

27 In particular see: M. Fitzmaurice, O. Elias, P. Merkouris (eds), Treaty interpretation and the Vienna Convention on the Law of Treaties, 30 years on, Martinus Nijhoff, The Hague, 2010, p. 9.

28 See in particular: I. Osamu, “Evolutionary interpretation of treaties re-examined. The two-stage reasoning”, in Journal of International Cooperation Studies, 22 (2–3), 2015, p. 131.

29 E. Bjorge, at, 146.


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referred to in art. 3.2 of the DSU are probably a larger set than that constituted by the rules of VCLT. It can be assumed that, from 1994 to today, on the one hand the meaning attributed to the latter can be changed, and on the other that they have been added of the interpretative principles (which can be sub-sumed under “customary rules” pursuant to article 3.2) that do not exist when the WTO Agreement was signed. What is noticeable is the mere possibility that this has happened, or may take place in the future. The question that must be asked then is this: with their reference to the customary rules on interpre-tation the editors of the treaty establishing the Organization have intended to bind themselves to the rules existing at the time of negotiation (what is known as fixed reference),30 or to those in force when the trade judge is asked to interpret a rule (mobile reference)? No panel or appellate body has ever directly addressed the issue, trying to resolve it in principle. However, in their jurisprudence certain statements can be found that can be used to try to draft an answer.

The issue was raised before the WTO judge who prudently circumvented it in the EC-Hormones case. The Sanitary and Phytosanitary Measures (SPS agreement), one of the “covered” treaties31 from the jurisdiction of WTO aims to reconcile the objective of liberalization of markets with the requirements of safeguarding health, and providing in articles 5.1 and 5.2, the conditions under which member states are entitled to take restrictive measures of trade based on health justifications. The European Union (EU), perhaps convinced itself that it has not fulfilled its obligations as trustees, invokes the precautionary principle (according to which, in the absence of certain scientific evidence on the harmfulness of an asset, the burden of proof aimed at demonstrating its non-dangerousness lies with who wants to challenge the policies implemented to prohibit that asset)32 as a principle in light of which to interpret the charges deriving from articles 5.1 and 5.2.33 The Panel is expressed as follows: “(…) the European Communities also invokes the precautionary principle in sup-port of its claim that its measures in dispute are based on a risk assessment. To the extent that this principle could be considered as part of customary

30 G. Marceau, J.P. Trachtman, “A map of the World Trade Organization law of domestic regulation of goods: The Technical Barriers to Trade Agreement, the Sanitary and Phyto-sanitary Measures Agreement, and the General Agreement on Tariffs and Trade”, in Journal of World Trade, 48 (2), 2014.

31 Id., at, 2.32 C. Kaddous (ed), The EU in International Organizations and global governance, Hart Pub-

lishing, Oxford & Oregon, Portland, 2015, p. 238.33 E. Vecchione, “Is it possible to provide evidence of insufficient evidence? The precaution-

ary principle at the WTO”, in Chicago Journal of International Law, 13 (1), 2012, p. 168.




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international law and be used to interpret articles 5.1 and 5.2 on the assessment of risks as a customary rule of interpretation of public international law (as that phrase is used in article 3.2 of DSU), we consider that this principle would not override the explicit wording of articles 5.1 and 5.2 (…)”.34

The Panel believes that the precautionary principle which does not analyze the genesis but which can easily be assumed to be subsequent to the birth of WTO cannot be used as a key to understanding the relevant provisions. How-ever, it is difficult to extrapolate a postulate of general scope from the words of judges, since they take into consideration the precautionary principle not as a rule of general international law, but as a rule of lex specialis. The Panel clarifies that the principle cannot serve the interpretation of art. 5.1 and 5.2 because it “has been incorporated and given a specific meaning in article 5.7 of SPS Agreement”.35 In practice, the customary precautionary principle cannot be emphasized, since a “local” and more restrictive version, is presumed, has already been incorporated into the Agreement on sanitary and phytosanitary measures, implicitly derogating from general law. Therefore, the norm is inter-nal and we cannot speak of transposition. The Panel concludes that EU has not carried out a proper assessment of the risk inherent in the importation of meat to hormones. Intending to maintain the prohibition in force, the Union then requests that the Appeal Body review the first instance ruling. With respect to Panel’s argument, the Organ adopts a different strategy, arguing that caution is needed in affirming the customary nature of the precautionary principle: even if it exists in the context of international environmental law, it cannot be said with certainty whether it has been extended to other areas of international law or not. I cannot say whether the body was aware of this, but the appeal judges went on to say that “the precautionary principle does not mean that it is not the normal (i.e. customary international law) principles of treaty interpretation”.36 If we consider the precautionary principle as a customary rule of interpreta-tion, the clear textual reference that the Organ claims does not lack, being this nothing but art. 3.2 DSU. In fact, it could be argued that this principle cannot

34 Panel report, European Communities—Measures Concerning Meat and Meat Prod-ucts (Hormones) (EC-Hormones (US)), WT/DS26/AB/R;WT/DS48/AB/R of 16 January 1998, par. 8.157. See, M.M. Du, “Standard of review under the SPS agreement after EC-Hormones II”, in The International and Comparative Law Quarterly, 59 (2), 2010, p. 444. M. Kende, The trade policy review mechanism. A critical analysis, Oxford University Press, Oxford, 2018.

35 Panel report, at, par. 7. The judges have stated that: “the European Communities has explicitly stated in this case that it is not invoking article 5.7”, although they do not draw consequences from this consideration.

36 Appellate Body report, at, par. 124.


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be included in the ranks of interpretative rules, and that instead it should be considered a norm that, although autonomous and aimed at other ends, is used in an interpretative way. This is, in my opinion, more than plausible. In this case, however, it would (apparently) lose sense of the clear opposition that the judges operate between the precautionary principle and the interpretative habits: since it is obvious that the application of the latter would not preclude, in principle, the first. And the objection that the conflict can be recomposed by resorting again to the idea of lex specialis stating that the analysis of the SPS Agreement through articles 31–33 VCLT37 highlights the will of the parties to exclude, through art. 5.7 of the Agreement, a broader notion of the precaution-ary principle, can be answered by recalling another passage of the decision, in which the judges “agree, at the same time, with the European Communities, that there is no need to assume that article 5.7 exhausts the relevance of a precautionary principle (…)”.38 A reasoning that seems a bit tortuous, that of the Appellate Body.

A passage taken from panel’s pronouncement, although at first not very sig-nificant, could provide an indication of the solution that the judge of the trade deems correct. In US-Copyright case EU disputes the legitimacy of that provi-sion of the US Copyright Act which allows the reproduction, in public places, of music transmitted by radio and television, provided the fulfillment of cer-tain requirements. Specifically, Europeans consider the rule to be in contrast with certain provisions of the Berne Convention for the protection of literary and artistic works,39 expressly acknowledged by art. 9.1 (of the Agreement on Intellectual Property Rights relating to Trade (TRIPS), another of the “covered” treaties).40 The Panel states that “through their incorporation, the substantive rules of the Berne Convention (1971) (…) have become part of the TRIPS Agree-ment and as provisions of that Agreement have to be read as applying to WTO

37 O. Dörr, at, 536.38 The confusion increases if we continue the quote, since it turns out that the Organ—

rightly, since it does not consider a customary precautionary principle still formed—refers to art. 3.3 of the DSB, which expresses the legitimacy of a higher level of protection than that achievable through measures based on international standards but (…) among other things refers to art. 5 of the Agreement.

39 S. Jacobs, “The effect of the 1886 Berne Convention on the U.S. copyright system’s treat-ment of moral rights and copyright term, and where that leaves Us today”, in Michigan Telecommunications & Technology Law Review, 23, 2016, p. 172.

40 According to the article: “Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto”. H. Grosse Ruse-Khan, “The (non) use of treaty object and purpose in intellectual property disputes in the WTO”, in Max Planck Institute for Intellectual Property & Competition Law, Research Paper no. 11–15, 2012.




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members”.41 The term “incorporation”, as well as the idea that the norms of the Convention have become an integral part of the Agreement and that they can be considered tout court provisions of the Agreement are elements that make one think of their probable crystallization at the time of signing. This view is supported by Mavroidis’ opinion, which suggests that a possible modification of the Berne Convention would have no effect on the rules entered into the TRIPS Agreement,42 since it is necessary to amend the Agreement itself.43

The reasoning seems a little forced. Even leaving aside the easy objection concerning the case where the amendment made to the external treaty is the work of a group of states that includes all those who are parties to the agree-ment that calls it, problem whose solution is easy only apparently, the deduc-tion does not convince. In fact, the implication, although absolutely logical in the abstract, gives the WTO judge a point of view that was never clearly expressed, and on which, we believe, he had no intention of expressing him-self. If we want to assert the idea that incorporation within the WTO system of external rules involves the petrifaction of these, it will be appropriate to find other topics. Especially since, as regards art. 3.2 of DSU, it is not said that it is possible to mechanically equate the implementation of specific contractual provisions to that of more general customary rules; all the more so if it is cus-tomary sui generis like those on interpretation, which, according to my thesis, change following a path different from that traveled by other norms (in the sense that we have the impression that the content can change even though permanently of the same customary “form”).

In fact, in the Organization jurisprudence this theme is never openly addressed. Whenever a Panel or the Appeals Body reiterated the applicabil-ity of customary law to relations between member states, they never specified what right they were referring to.44 What the negotiators could observe at the

41 Panel report, United States-Section 110(5) of the US Copyright Act (US-Copyright), WT/DS160/R of 15 June 2000, par. 6.18. see, D.J. Gervais, Restructuring copyright: A comprehen-sive path to international copyright reform, Edward Elgar Publishers, Cheltenham. 2017.

42 M. Land, “Rebalancing TRIPS”, in Michigan Journal of International Law, 33, 2012, p. 434.43 P.C. Mavroidis, “No outsourcing of law? WTO law as practiced by WTO Courts”, in Ameri-

can Journal of International Law, 102, 2008, p. 428.44 Most of the times when this happened, however, the court made reference to the inter-

pretative rules of the Vienna Convention which, as is well known, are far earlier than the Marrakesh Agreement. A similar argument applies to the case in which an arbitrator, appointed following an appeal by the United States based on art. 22.6 DSU, he made use of the draft articles on the responsibility of states elaborated by the International Law Commission: although approved in 2001, the document intends to reflect a customary law whose genesis is placed in a point—relative to the birth of WTO—not easily identifi-able (its layout has in fact required several decades). See, Arbitration report, US—Tax


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time of negotiations? Or what the judges face when a controversy is brought to their attention? It is highly probable, however, that the correct answer is the second: the applicable customary law is that in force at the time of inter-pretation, does not mean that it can necessarily be used by the judge for her-meneutical purposes. We are here at the meeting point between the time and space factor, where it becomes necessary to understand if WTO, understood as a system of law, is not a “place” by its nature unavailable to reflect the evolu-tion of external law, or at least part of it. Can it provide for the exclusion of certain rules, in particular some of an interpretative nature? The judge of the commerce has specified that, even in presence of an obligation to interpret the agreements “covered” in the light of the general international law, it is pos-sible that member states have precluded the access to some customary norms. In the Korea-Government Procurement case, in fact, having to establish the applicability of the principle of non-violation, an extension of the principle of good faith45 according to which the parties must preserve the integrity of the object and purpose of the treaty, beyond the punctual compliance of its provi-sions, the Panel has expressed itself: “(…) customary international law applies generally to economic relations between WTO members. Such international law applies to the extent that the WTO treaty agreements do not ‘contract out’ from it. To put it another way, to the extent there is no conflict or inconsistency, or an expression in a covered WTO agreement that implies differently, we are of the view that the customary rules of international law apply to WTO treaties and to the process of treaty formation under WTO”.46

The words of judges at first instance leave much room for maneuver to those who intend to use them to interpret the structure of the system built in Marrakech. In fact, in the passage it is said that any customary norm which is not only in conflict with the rules of the system, but which is also more sim-ply incoherent with respect to them, or which clashes with what they imply. We can read a progressive loosening in the cogency of deduction: by defini-tion, a norm that implies is a norm that does not express, that does not speak

Treatment for “Foreign Sales Corporations” (US-FSC), par. 5.58. I do not take into consid-eration the aforementioned Panel report in the Hormones case, since the Appeals Body subsequently refused to specify the (customary or otherwise) nature of the precautionary principle.

45 See in particular the analysis: A.D. Mitchell, M. Sornarajah, T. Voon, Good faith and inter-national economic law, Oxford University Press, Oxford, 2015, p. 21.

46 Panel report, Korea-Measures Affecting Government Procurement (Korea-Government Procurement), WT/DS163/R of 1st May 2000, par. 7.96. The judges cite the previous ruling by a Panel to recall that the principle of non-violation has a fifty-year history: this, too, is certainly precedent compared to the treaty establishing WTO.




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explicitly. And, since each provision takes on meaning only within the host instrument,47 interpreter’s task is to understand the implications of WTO sys-tem as a whole. After all, this is “only” the goal of those who want to under-stand if (and to what extent) the Organization is a self-contained regime also with respect to the right of interpretation.

3 Autonomy of WTO Law with Respect to External Law: The Prohibition to Modify Obligations Set Out in Article 3.2 of DSU

With regard to the limits imposed by WTO we can say in speciem that art. 3.2 of DSU clarifies the purpose of the judicial function exercised by the panels and the Appellate Body and sets a precise limit to this activity.48 The role of interpreters is justified by the need to maintain unaltered the balance between rights and duties established by the treaty establishing the organization and its annexes (the “covered agreements”). To this end, DSU Agreement stipulates that it is impossible to use general international law on interpretation in order to alter this balance. This is one of the most important norms of the whole system, because speaking of the objective of the judicial function it speaks, at the same time, also of the purpose of the organization as a whole. The latter is in fact seen as a bundle of rights and duties which member states have recog-nized to each other on the basis of reciprocity, and which the bodies respon-sible for interpretation have the task of preserving. However, simply stating this may not be of great help in the absence of a clarification of the nature of these rights and obligations. Of course, it is legitimate to give a restrictive read-ing of the obligations inscribed in the agreements, according to the idea (per-haps implicit) for which the WTO would be nothing but a framework within

47 It is the same jurisprudence of the trade judge that recognizes him when he says that: “(…) to the extent that one can speak of the ‘object and purpose of a treaty provision’, it will be informed by, and will be in consonance with, the object and purpose of the entire treaty of which it is but a component”: Appellate Body report, European Communities—Customs Classification of Frozen Boneless Chicken Cuts (EC-Chicken Classification), WT/DS269/AB/R of 27 September 2005, par. 238.

48 The dispute settlement system of WTO is a central element in providing security and predictability to the multilateral trading system. WTO system recognizes that it serves to preserve the rights and obligations of members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of customary international law. Recommendations and rulings of DSB cannot add to or diminish the rights and obligations provided in the covered agreements.


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which states negotiate commercial concessions.49 But this cannot be taken for granted, and must represent the outcome, it is not the starting point of an investigation. This, in my opinion, must necessarily start from the notion of modification of rights and duties.

The fact that art. 3.2 uses (twice) the formula “rights and obligations” instead of a more common “provisions” lays down in Marrakech Agreement; a treaty built on the synallagmatics of the legal positions of the contractors. In other words, it seems that the pact is one of those that can easily be deconstructed in numerous bilateral relations between the various parties, which for their part exhaust the content of the instrument: there would be no trace of abso-lute obligations, and full obligations could to speak, at most, on institutional rules (including those on the dispute resolution mechanism).50 However this is simply a guess. In the absence of a provision that clarifies the meaning of the terminology used in the Agreement it is inevitable to have to pay attention to jurisprudence, and more precisely to the way in which it has interpreted the idea of “modification”. Perhaps, in fact, trying to discern between what is modi-fying and what is not will be easier to understand what is meant by rights and duties. A first quotation taken from a ruling by the Appellate Body is not, how-ever, of great help. At the request made by Chile to reconsider certain argu-ments on which the first instance judgment had been based, judges replied that the request cannot be accepted, given that the reversal of some of the the-ses on which the Panel had been based did not lead to corruption the validity of its conclusions: “we have difficulty”, they say, “in envisaging circumstances in which a panel could add to the rights and obligations of a WTO member if its conclusions reflected a correct interpretation and application of provisions of the covered agreements (…)”.51 I have the impression that the Appellate Body does not do much here to confirm the obvious: if the treaty is interpreted in an unexceptionable way, the balance between the rights and duties of the par-ties is not compromised. But perhaps it is not so obvious, because the referees called to resolve the dispute thus express themselves: “(…) an interpretation

49 J.P. Kelly, “The seduction of the Appellate Body: Shrimp/Sea Turtle I and II and the proper role of states in WTO governance”, in Cornell International Law Journal, 38, 2005, in which the author intends to demonstrate how a judicial undocumented activity is to the detri-ment of weaker states.

50 G. Fitzmaurice, “Second report on the law of Treaties”, in Yearbook of the International Law Commission, 2, 1957, pp. 53–55, which in particular is stated that: “it is impossible to define a treaty in its entirety as reciprocal or integral in nature. One must look at every provision and every obligation individually (…)”.

51 Appellate Body report, Chile—Taxes on Alcoholic Beverages (Chile-Alcohol), WT/DS87/AB/R; WT/DS110/B/R of 13 December 1999, par. 79.




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which was legally binding on all contracting parties would in our view by its very binding nature “affect” rights and obligations of contracting parties under General Agreement, even if that interpretation simply served to “clarify” the precise scope of those rights and obligations (…)”.52

Although the Panel claims to be able to establish the legal status of an instrument of understanding approved by contracting parties only on a cir-cumstantial basis, given that these did not specify the legal basis on which they performed the act, a parallel can be drawn between the supposed binding value of the cartel and that of the interpretative statement that the Ministerial Conference (the meeting of ministers of all member states held on a two-year basis) and the General Council (the decision-making body, composed of rep-resentatives of all the parties, who acts as a substitute for the Conference) can give to ex art. IX: 2 of Marrakech Agreement. The Panel prefers the word “affect” to the more usual expression “add to or diminish”, but it is difficult to identify a significant difference in the presence of a concessive (“if”) which seems to contrast the idea of clarification with that of repercussion. Not that, in reality, it is impossible to attempt to reconcile these two notions: the merely illustra-tive character of the interpretation can, on the other hand, coexist together with the fact that it affects in some way the perception that the parties have of their obligations, erasing the doubts and ending disagreements.53 How-ever, the uncertainty about the meaning to be attributed to Panel’s sentence remains, since WTO ruling bodies are not new to sibylline or, at least ambigu-ous, statements. In US-Shirts and Blouses cases, the Appeals Body, having to decide on the possibility for a Panel to exercise a certain degree of judicial economy in the issuing of its award, claimed that the Court of First Instance is only required to examine the points of law necessary to resolve the case, and not others. And he did it by saying that: “(…) given the explicit aim of dispute settlement that permeates DSU, we do not consider that article 3.2 of DSU is meant to encourage either panels or the Appellate Body to ‘make law’54 by clarifying existing provisions of WTO Agreement outside the context of resolv-ing a particular dispute”.55

52 Panel report, US—Tax Treatment for “Foreign Sales Corporations” (US-FSC), WT/DS108/AB/R of 24 February 2000, par. 7.68.

53 J.P. Trachtman, “WTO trade and environment jurisprudence avoiding environmental catastrophe”, in Harvard Journal of International Law, 58 (2), 2017, p. 279.

54 F. Roessler, “Changes in the jurisprudence of the WTO Appellate Body during the past twenty years”, in Journal of International Trade Law & Policy, 14, 2015, p. 130.

55 Appellate Body report, United States—Measure Affecting Imports of Woven Wool Shirts and Blouses from India (US—Shirts and Blouses), WT/DS533/AB/R of 25 April 1997,


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Again the concepts of modification and explanation of the law are inter-twined, and once again there is the feeling that this derives from an improper and light use that the judge of commerce makes of such ideas. In this specific case, the Appellate Body has considered that clarifying the meaning of the pro-visions of the treaty of the Organization other than those pertaining to the context of the dispute is equivalent to “legislate”, i.e. to produce new law. The equation is clearly meaningless, and can only be explained by giving the terms chosen by the judge of the second degree a more impressionistic sense than rigorous (as perhaps the use of quotation marks around the expression “make law”). But the idea of an overlapping (even only partial) between the interpretative and the modifying activity of law, present in several places in the jurisprudence, seems to be confirmed in the same treaty establishing the Organization. Article X: 3 of the Marrakesh Agreement, in fact, describes the modalities according to which those amendments must be made to the agreement itself (or to some of its annexes) that do not alter the rights and duties of member states. Similarly, art. X: 4 illustrates the amendment proce-dure in cases where the amendments to be approved are of a nature that does not alter the rights and duties of the parties.56 The same legal texts that under-lie the WTO system validate the hypothesis of the existence of amendments that, while modifying the letter of the text, do not compromise the balance between obligations as defined at the time of the adoption of the agreement.

According to my opinion by reading art. X an important consequence can be drawn, namely that not all the provisions of the agreement and the “covered” treaties are to be equated. The existence of amendments capable of chang-ing the rights and duties of the parties and, at the same time, of amendments that leave these rights and duties unaltered clearly reveals that not everything that is written in the treaty should have, in the interpreter’s eyes, the same relevance. Since in fact these are bound by art. 3.2 of DSU57 not to change the balance between rights and duties of which the agreement is an expression, it becomes its task and its faculty to establish what is admissible and what is not during hermeneutical activity. The judge can also detach himself from the naked textual constraint in making his own judgment: the important thing is that this detachment does not correspond to an alteration of the rights and obligations of member states (that is, it is necessary that the change made by

par. 19. See, N.F. Diebold, Non-discrimination in international trade in services: “Likeness” in WTP/GATS, Cambridge University Press, 2010.

56 A.H. Qureshi, Interpreting WTO agreements. Problems and perspectives, Cambridge Uni-versity Press, Cambridge, 2015.

57 Id., at, 25.




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judicial procedure can be included among the cases provided for by article X: 4). Panels and the Appeals Body seldom have spent a few words to shed light on this subtle distinction, and therefore to clarify the outlines of the two—modifying or merely interpretative—amendment categories: to my knowl-edge, this has been done, en passant, only once. In Argentina-Textiles case the Appeals Body was asked to assess the compatibility with WTO law of a provision that Argentina claimed to have implemented in compliance with an obligation under a Memorandum stipulated with the International Monetary Fund (IMF). Denying (as the Panel had already done) both the binding value of the latter and the supremacy of its provisions with respect to the obligations of WTO. The second instance judge explains that no conflict rule is traceable in the legal instruments that bind the Organization and the Fund. Among these appears the Agreement between IMF and WTO, which, according to the Organ, “does not modify, nor does it modify the United States’ commitments to IMF”.58 In fact, the agreement does not establish the primacy of one of the two sys-tems on the other, but limits itself to establishing a duty of consultation placed in the hands of both organizations whenever there is a possible contrast between the measures under discussion one of them and the obligations imposed by the other. Evidently, it is judges’ opinion that a duty to treat pre-ventively avoiding that the adoption of measures by one system conflicts with compliance with the rules of another is not as intrusive as the provision of a norm of prevalence that resolves the conflict ex post, and that therefore the first case, unlike the latter, does not constitute a modification of the exist-ing law.

However, it is extremely difficult to understand which amendments rep-resent an illegitimate rebalancing of the rights and duties inscribed in the agreement, and which, on the contrary, are to be considered as textual changes that have no effect on the structure of provisions. Instinctively, it would be necessary to include in the first of these two categories the changes made to art. X of the treaty establishing WTO (as a rule based on the distinction), both those concerning art. 3.2 on disputes settlement (as a constraint to the para-judicial action of Panel and Appellate Body: if they were allowed to change the balance of rights/duties in an interpretative way would lose its sense of idea, accepted in article X, for which the amendments implying such a change come

58 Appellate Body report, Argentina—Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items (Argentina—Textiles), DS556/AB/R of 27 March 1998, par. 72. for details see: J. Chaisse, T.Y. Lin, International economic law and governance. Essays in honour of Mitsuo Matsushita, Oxford University Press, Oxford, 2016.


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into force only for those who accept them).59 It should also be added that very probably there are very numerous (and certainly most) provisions that do not allow “amendments” implemented by the judging bodies in an interpretative manner, under penalty of a shift of members rights and duties. It is however possible that the commercial judge did not question himself adequately on this subject. Consider the following example, which, like the previous one, investigates the role of IMF in WTO system. Article XV: 2 of GATT 1994 pro-vides that whenever the contracting parties are faced with problems concern-ing monetary reserves, balance of payments or agreements on currency, they must consult the IMF and accept any statistical or other factual consideration that this advances.60 In India-Quantitative Restrictions case, the Appeals Body was asked to assess the correctness of Panel’s behavior, which limited itself to taking into account the analysis of IMF without giving them a decisive value in resolving the case. The second instance judge endorsed Panel’s modus ope-randi, stating that not considering IMF’s observations decisive, it had carried out a scrupulous and objective evaluation of the question submitted to it, as is its duty pursuant to art. 11 DSU.61 Now, it is questionable whether this solution is correct. It is not according to Siegel, who sees in art. 3.2 of the Entente, and therefore in the obligation, for the judicial body, to add nothing and nothing to subtract about the rights and duties of member states, the instrument with which to assert the superiority of the constraint of art. XV: 2 GATT on what is required by art. 11 DSU. This is how author’s syllogism unfolds: article 3.2 DSU constrains the role of the dispute settlement process such that “(…) recommen-dations and rulings of the Dispute Settlement Body cannot add to or diminish the rights and obligations provided in the covered agreements (…) GATT is one of the covered agreements and its article XV: 2 requires WTO to consult the Fund and accept certain of its determinations, (…) the consultation require-ment would change the substantive effect of the instruction in GATT precisely in circumstances where these substantive rules are being applied to determine compliance with the agreements (…)”.62

59 C. Heidfeld, at, 29.60 Id., at, 30.61 Appellate Body report, India—Quantitative Restrictions on Imports of Agricultural,

Textile and Industrial Products (India—Quantitative Restrictions), op. cit., parr. 149–151. See, W.J. Davey, “Non-discrimination in the WTO: The rules and exception”, in Recueil des Cours, vol. 354, ed. Brill, The Hague, 2012.

62 D.E. Siegel, “Legal aspects of the IMF/WTO Relationship: The Fund’s articles of Agree-ment and the WTO Agreements”, in American Journal of International Law, 135, 2002, p. 582. A.C.M. De Mestral, “Dispute settlement under the WTO and RTAs: An uneasy rela-tionship”, in Journal of International Economic Law, 16, 2013, p. 778.




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If GATT commits contracting parties to accept as valid any factual assess-ment made by IMF, judicial bodies have the duty to act in a way that does not involve the violation of external obligations of member states: “the inclusion of Dispute Settlement Understanding in WTO Agreements should be interpreted in a way that changes the relationship between Fund and WTO”.63 This sen-tence is truly enlightening, since it clarifies what seems to me to be the true nature of the problem, namely the allocation of powers in the interpretative field. Article 11 DSU authorizes the panels to give a reading of the facts disre-spectful of the constraints to which the states parties of the Organization have decided to submit? Or, instead, does the interpretative autonomy assured to the judges of the first degree compromise the relationships that link the sys-tem to all that is external to it?

4 Allocation of Powers and Interpretation of the System

The discourse on self-contained regimes, on the supranational processes of constitutionalization and on the development of a global administrative law that are going through international law cannot neglect—and, in fact, they have not neglected—the system of WTO. It is in this context that, in my opin-ion, every question should be read regarding the real allocation of powers in the interpretative field within WTO. Question that, in its most simplified form, can be summarized as follows: who has the right to do what? That is, more in full: to whom has the Organization recognized the power to interpret, and within what limits? It goes without saying that this is a very significant ques-tion for those who want to understand the degree of elasticity of the system, or the extent to which it admits an evolution in the interpretation of its rules. To this end it is necessary that the Organization as a whole be studied as a unity, a constitutional order, precisely, to become aware of the way in which the agree-ment and its annexes distribute power. From the outset, however, it should be emphasized that a similar allocation of the faculty of interpretation is itself an object of interpretation, and that consequently it cannot be excluded,

63 The formulation of the quoted sentence suggests an interesting question of intertemporal interpretation: the insertion of a complex mechanism of dispute resolution within a pre-existing system (what happens with the inclusion of the Entente in GATT) changes the interpretation of the latter? Or is it the system that wins, and limits the interpretation of the addendum? In my humble opinion there are no doubts: the acceptance of the addi-tion constitutes a new agreement, and it is to be considered that the new system should be read, as a whole, as if it were not decomposable (forgetting, that is, the interpretation that was been given to its “old” components).


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in an intertemporal perspective, its eventual evolution. This is the message that implicitly emerges from the study of Mavroidis, who, after having analyzed copious jurisprudence, points out that, “(…) over the years, WTO adjudicating bodies have taken a friendlier attitude towards decisions and recommenda-tions adopted by various (for example, committees) WTO organs”.64 However, regardless of the veracity of this observation on a general level, the aforemen-tioned cases lend themselves to configuring a rigid division of powers, being all, good or bad, attributable to the scheme of India-Quantitative Restrictions mentioned above: decisions of the various committees and bodies relating to the Organization are only adequately taken into consideration, but never seen as impassable limits to the decision-making action of the judicial bodies.65 Unless, as we say in the first instance ruling on the case just mentioned, these recommendations are not binding. In this case, Panel and Appeals Body are obliged to respect the act.66

This seems obvious enough, but it is worth remembering, given that what is obligatory in the end and what cannot be object of dispute. The same art. IX: 2 Marrakesh Agreement (which gives the General Council and Ministerial Con-ference the authority to interpret the legal instruments of WTO),67 for example, does not specify whether such acts should be considered binding by the judge of the Organization: nevertheless, it is essentially consistent in attributing to them a mandatory value. That said, it cannot be excluded that this reading of the division of powers may be wrong, or that, even if just, it may be reversed in the future. It cannot be assumed, in fact, that WTO system is or should be devoid of a court of legitimacy, of a court, that is, capable of evaluating the correctness of acts adopted by the other organs of the Organization. Should the Conference or the Council adopt a blatantly unfair interpretation, then, if ultra vires were to act, could the commercial judge not dismiss the decision?68

64 Sometimes this is done with a fair amount of ambiguity. In one of the most “promising” cases mentioned by Mavroidis—where he states that a recommendation is used by the judge as “source of law” the Panel uses the act on a desirability basis. Panel report, United States—Definitive Safeguard Measures on Imports of Circular Welded Carbon Quality Line Pipe from Korea (US-Line Pipes Safeguards), WT/DS202/AB/R of 15 February 2002, par. 7.321.

65 Panel report, India—Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products (India—Quantitative Restrictions), par. 5.94.

66 Appellate Body report, at, par. 113.67 C. Heidfeld, at, 22.68 I believe that, in the end, this is the relevant question, regardless of my non-strict use of

logic and categories. In fact, there is no opposition in principle between the obligatory nature of an act and the existence of a judge capable of reviewing it. Here again the same problem appeared at the end of the previous paragraph, namely the one concerning the




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At present this appears unlikely. In any case, the question needs clarification. In fact it is not clear what it means for the Conference or the Council to act beyond the competences assigned to them.

This is a problem that has been given two different solutions. On the one hand there are those who think that the authoritative interpretation given ex art. IX: 2 may, to a certain extent, “override” the text of the treaties and give their provisions a partially modified meaning;69 on the other, he believes that Conference and Council must be subject to the same limits imposed on the activity of judicial bodies, and that they cannot therefore “add to or diminish the rights and obligations provided in the covered agreements”.70 It matters little that the Appellate Body seems to have stood in favor of the first thesis: it has done so in such a way that it is perhaps improper to attribute great weight to his words.71 Therefore we need to reason in the abstract. This leads to a first, obvious objection: what the sense of a rule on the amendment of agreements (the aforementioned article X of the treaty establishing WTO) in the presence of a provision on interpretation that makes it possible to make “informal” changes at their meaning? The answer is found in the same art. IX: 2, where it is stated that “(…) this paragraph shall be used in a manner that would under-mine the amendment provisions in article X”.72 A division of responsibilities is made: art. X serves to modify Marrakech Agreement and its annexes, while the one that precedes it authorizes to provide interpretations that do not make sense of the article on the amendments. However, it remains to be understood what is meant by the expression “undermine the amendment provisions”. Within art. IX: 2, of a prohibition of modification similar to that expressed in art. 3.2 DSU can be read as an implicit acceptance of the possibility of changing

role of the judge in the decision-making mechanisms of WTO. Is the authoritative inter-pretation formally compulsory only for member states or even for the judicial bodies of the organization? Although the first option seems, at first sight, to make the function of art. IX: 2, it actually produces an evident concrete effect: the uniformity of the behavior of the parties without having to resort to an assessment by the judge (a move that may prove diplomatically inconvenient).

69 C.D. Ehlermann, L. Ehring, “The authoritative interpretation under Article IX: 2 of the Agreement establishing the World Trade Organization: Current law, practice and possible improvements”, in Journal of International Economic Law, 8, 2005.

70 T. Gazzini, “Can the authoritative interpretation under Article IX: 2 of the Agreement establishing the WTO modify the rights and obligations of members?”, in International and Comparative Law Quarterly, 38, 2008.

71 Appellate Body report, at, n. 127. The fact that the judgment of the organ has been rel-egated to a note is also explained by its being superfluous for the purposes of resolving the case.

72 C. Heidfeld, at, 35.


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the literal meaning of the treaties: in this perspective the term “undermine” would take on a strong connotation, such that only the complete emptying of art. X would be forbidden. On the contrary, small changes would not compro-mise the rule on the amendment: “(…) the last sentence of article IX: 2, there-fore, does not stand in the way of permitting authoritative interpretations to modify the law, it only limits the extent to which this may occur”.73 In this way the right to amend the law is given in an interpretative way, not much more than a gap-filling exercise.74 It is difficult for me to understand how this dif-fers from what is legitimate for Panels and the Appellate Body:75 all the more so, recalling the distinction between amendments that modify the obligations and amendments that leave their equilibrium intact (and therefore allowed to the judge), it is not plausible to think that the filling of the gaps ends com-pletely in the first of the two categories! On the contrary, it is easier to believe that it represents a good part of what the negotiators of Marrakesh Agreement referred to when they talked about amendments that did not affect the rights/duties of the parties.

Article X: 2 establishes, as we have seen, that the adoption of an authori-tative interpretation must not jeopardize the meaning of the existence of a specific norm, art. 2, concerning amendment procedures. The latter, however, also expressly speaks of changes not implying alteration of the relationship between rights and duties: one would therefore be tempted to conclude not only that General Council and Ministerial Conference cannot “amend” the text of the treaties in a way that it involves a rebalancing of obligations, but also that they cannot do so even if their authoritative interpretation leaves the balancing of rights and duties unaltered. Inference, however, would be wrong.

73 C.D. Ehlermann, L. Ehring, at, 808ss.74 According to my opinion, this is true regardless of the fact that the two authors consider

the authoritative interpretation capable of truly renewing a rule. Of this they are so con-vinced that, in another paper, they support the non-retroactivity of the interpretation provided by the political organs: and we know well how the validity ex nunc of an effect is what distinguishes the interpretation of the law (acting ex tunc) from its modification. C.D. Ehlermann, L. Ehring, “Are WTO decision-making procedures adequate for mak-ing, revising and implementing worldwide and “plurilateral” rules?”, in E.U. Petersmann, Reforming the World Trading System. Legitimacy, efficiency and democratic governance, Oxford University Press, Oxford 2005, p. 507.

75 I. Van Damme, Treaty interpretation by the WTO appellate body, Oxford University Press, Oxford 2009, p. 112. J.H. Jackson, The WTO, and changing fundamentals of international law, Cambridge University Press, Cambridge 2006, pp. 187–188, which brings back the pos-sibility of gap-filling to the constitutional nature of the world trade system. More gener-ally on the cost/benefit ratio of a standards-based system-more likely to be lacking-and one based on standard. See also, J.P. Trachtman, “The domain of WTO Dispute Resolu-tion”, in Harvard International Law Journal, 54, 1999.




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The two articles in question, in fact, provide for two different decision-making thresholds: three-quarters of the meeting to adopt an interpretative act, two-thirds to approve an amendment. The joint reading of the two provisions, therefore, teaches us that the change without repercussions on the structure of obligations can stop at two thirds of the votes. The achievement of the approval of three quarters of the assembly is ad abundantiam, and this causes art. IX: 2 does not represent for art. X, a real threat (it is not possible to use the first to circumvent the threshold of the second, this being greater than that provided by the article on interpretation). A different discourse but with the same result as regards the act aimed at altering the relationship between rights and duties: admitted and not granted that it can be taken, as well as on the basis of art. X, also through the interpretive channel of art. IX: 2, two cases can be imagined. The first is identical to the previous one: art. IX: 2 does not under-mine art. X because the latter provides a lower decision threshold (again, three quarters against two thirds). The second case, on the other hand, is presented if the Conference considers, with a majority of three quarters, that the amend-ment affects so heavily the nature of obligations to imply the possibility, for those who have not voted in favor, to leave the Organization: Conference itself can approve similar circumstances, on a case-by-case basis, the permanence in WTO of a state that is against the modification. In the absence of “derogations”, is the case in which no objectionable state was granted the opportunity to stay, this would be tantamount to changing the treaty with the favorable vote of three quarters of members, and with validity erga omnes (as for art IX: 2).

If this framework is correct, then both political (Council and Conference) and judicial bodies (Panel and Appeal Body) are entitled to modify the right of WTO to the extent that this does not result in an increase or decrease of the rights and duties of member states. Moreover, both judge and diplomat are the protagonists of a complex system of checks and balances such that the for-mer has the faculty (and indeed the duty) to reject the authoritative interpreta-tions that the second should take by acting ultra vires, and the second that of rectifying an “unwelcome” interpretation taken by the former, also binding it to follow the new route in subsequent rulings.76 Organization architecture based on “checks and balances” model, is similar to that of a constitutional order. In this context the relevant question how and in what direction (possibly) evolves the right of WTO acquires a further element of complexity? Not only is it not clear to what extent an interpretation that is far from the letter of the text

76 T. Gazzini, Can the authoritative interpretation under article IX: 2 of the agreement establishing the WTO modify the rights and obligations of members?, op. cit., p. 177 (the author speaks for “checks and balances”).


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can (by analogy with article X: 4 of the founding treaty) preserve the balance between rights and obligations desired by the negotiators. The notion of con-stitution also recalls the idea of a system capable (and desirous) of protecting fundamental rights, and capable of claiming a certain level of autonomy with respect to the will of individuals who comprise it.77

5 “Constitution” and Interpretation of WTO

Of course, there is no unanimity in interpretative positions:78 there are those who see this process favorably and those who, on the other, find it desirable that WTO remain an agreement that combines the concessions that states make to each other, and these to the institutional structure that aims to protect them.79 From this it emerges that the (presumed) constitutionalization of WTO is only the expression of a political purpose, and not the scientifically correct outcome of the interpretation of the system. The social practices that reveal the constitutional phenomenon are an integral part, through the perception that one has of them, of the constitution itself: “(…) to common consciousness about constitutionalization, what it means, whether it exists, is a significant part of what shapes the process of constitutionalization itself”.80 The notion of “common consciousness” is not trivial, because it forces us to identify its owner. Are the states? Or are we all, or rather, the most qualified of us, those who can, through their doctrine, influence the reading of that complex of rules that we call system? Let us therefore leave the question “about the author” of conscience open, a question that ultimately does nothing but reproduce that of interpretation author, that is to say whether it is the will of the parties to guide the interpretation of a legal instrument, or of the latter to objectively represent the will of the parties.

In particular, Marrakesh Agreement including the attached treaties offers “constitutional” insights. The model is the rigid constitution: art. X foresees,

77 E.U. Petersmann, Multilevel constitutionalism for multilevel governance of public goods—Methodology problems in international law, Hart Publishing, Oxford & Oregon, Portland, 2017.

78 D.Z. Cass, The constitutionalization of the World Trade Organization: Legitimacy, democ-racy and community in the international trading system, Oxford University Press, Oxford 2005. The author stated that: “the WTO is not constitutionalized, and nor, according to any current meanings of the term, should it be” the “current meanings” of which he speaks, however, are of a more procedural than substantive nature.

79 W. Shan, P. Simons, D. Singh (a cura di), Redefining sovereignty in international economic law, Hart Publishing, Oxford & Oregon, Portland, 2008.

80 D.Z. Cass, at, 25.




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as we have seen, qualified majorities of at least two-thirds of the members in order to make changes to the treaties, and it is itself protected by its sec-ond paragraph, which requires that the amendments to some provisions (including, in fact, article X) are approved only if accepted by all states par-ties. These procedural guarantees, which in the internal legal systems serve to make regulatory change as consensual as possible, are studied here to achieve the opposite effect, i.e. to deprive individual member of the right of veto on the choice to amend the agreement or its annexes: what, on the contrary, would occur if VCLT81 was applied. Moreover, the same introduction in WTO system of a centralized mechanism for dispute resolution responds to this logic: indi-vidual’s weakening of decision-making autonomy to the advantage of collegi-ality of political action, on the one hand, and independence judicial activity, on the other. This led an author to state that “the rule-based system of WTO has left its consensus based approach behind”.82 More than “behind”, I would say “upstream”. That is to say: the rules that are at the basis of the Organization are certainly a manifestation of the will (consensual) of the parties, but the system has a margin of maneuver sufficiently large to allow, in case of conflict, that the normative data, so as interpreted by the Panel and the Organ of Appeal, to prevail. Of course, what is relevant here is to understand how far this interpre-tation can go. Can it go extra legem, or even contra legem? In other words: can the WTO function like EU?

There are many and very different ways of conceiving the “constitution” of WTO.83 And the only thing that seems to unite them is the resolute desire to maintain a low profile demonstrated by the judicial organs of the Organi-zation, which, sensitive to the political repercussions of their rulings and wishing to preserve their legitimacy, have in fact denied any concession to

81 Of which art. 40 states that the amendments can be made, but only the parties accepting them are bound: in practice, this is the creation of a new treaty. Article X of GATT 1994, however, provides that this applies only if the change alters the balance between rights and duties, and only if the Ministerial Conference does not sanction the exit of states that do not accept change. In the WTO, therefore, a qualified majority can extinguish the minority’s constraint with the ruler!

82 M. Hilf, “Power, rules and principles-Which orientation for WTO/GATT Law?”, in Journal of International Economic Law, 9, 2001, p. 116. For the “rule-based” see, D. Zang, “Textualism in GATT/WTO jurisprudence: Lessons for the constitutionalization debate”, in Syracuse Journal of International Law and Commerce, 33, 2006, p. 396.

83 J.L. Dunoff, “Constitutional conceits: The WTO’s “constitution” and the discipline of international law”, in European Journal of International Law, 17, 2006. J.P. Trachtman, “The constitutions of the WTO”, in European Journal of International Law, 17, 2006.


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constitutionalism.84 This explains the difference that separates European sys-tem and that of international trade on some of the issues that have character-ized CJEU jurisprudence and its conquest of a greater freedom of maneuver. Hence, if CJEU has repeatedly affirmed the applicability of human rights as a parameter of European law, the Appellate Body has never used them to exam-ine the facts submitted to its attention;85 and if Brussels judge has “opened” the norm on the exceptions to the case not covered by it, the WTO judge con-siders it as mandatory and limited to what is stated in it.86 Moreover, on at least one issue we can record not only an objective distance, but a conscious distance-taking by a Panel compared to one of the postulates of EU law. In fact, Slotboom notes the (perhaps not accidental) similarity between two

84 R.H. Steiberrg, “Judicial lawmaking at the WTO: Discursive, constitutional and political constraints”, in American Journal of International Law, 98, 2004, pp. 247–275. The author is convinced that the complacent attitude that Panel and Appeals Body have assumed towards the most powerful members will hardly fail in the coming years: a rather spread, however, see also: H.L. Schloemann, S. Ohlhoff, “Constitutionalization” and dispute set-tlement in the WTO: National security as an issue of competence”, in American Journal of International Law, 93, 1999, p. 451. However, it is worth pointing out that even if the assumptions of the action of the commercial judge are politically connoted, this does not necessarily mean that a judicial restraint regime is adhered to: it is sometimes the evolu-tion of the right to meet the interests of strong states.

85 That the fundamental rights of the person were part of the general principles of EU law had in fact already been established for some time from CJEU, case C-11/70, Stauder of 12 November 1969, ECLI:EU:C:1969:114, I-01125, par. 7; Case C-617/10, Fransson of 26 Feb-ruary 2013, ECLI:EU:C:2013:10, published in electronic Reports of the cases, par. 19. It is no coincidence that references to the most prominent court rulings are aimed solely at enhancing the binding nature of the general EU principles (CJEU, C-4/73, Nold of 14 May 1974, ECLI:EU:C:1974:51, I-00491, par. 13; case C-44/79, Hauer of 13 December 1979, ECLI:EU:C:1979:290, I-03727, parr. 15–16; case C-5/88, Wachauf of 13 July 1989, ECLI:EU:C:1989:321, I-02669, par. 17) although, constant references to the content of the Convention as a parameter to determine the content of these principles are not lacking (see also the case: C-260/89, ERT of 18 June 1991, ECLI:EU:C:1991:254, I-02925, par. 41); C-415/05 P, Kadi & Al Barakaat Int’l Foundation v. Council of 8 November 2008, ECLI:EU:C:2008:461, I-635 For details see: M. Feinberg, Sovereignty in the age of global terrorism. The role of International Organisations, Brill/Nijhoff, Leiden/Boston, 2016. R. Uerpmann-Wittzack, “Rechtsfragen und Rechtsfolgendes Beitritts der Europäischen Union zur EMRK”, in Europarecht, 2012, p. 167. C. Nowak, Europarecht nach Lissabon, ed. Nomos, Baden-Baden, 2011. D. Chalmers, G. Davies, G. Monti, European Union law, Cam-bridge University Press, Cambridge, 2014. J. Tillotson, N. Foster, Text, cases and materials on European Union law, Cavendish Publishing, New York, 2013. M. Horspool, M. Hum-phreys, European Union law, Oxford University Press, Oxford, 2012, p. 552. Satzger, Inter-national and European Criminal Law, Hart Publishing, Oxford & Oregon, Portland, 2017. T. Oppermann, C.D. Classen, M. Nettesheim, Europarecht, C.H. Beck, München, 2016.

86 S. Zleptnig, Non-economic objectives in WTO Law: Justification provisions of GATT, GATS, SPS and TBT Agreements, Martinus Nijhoff Publishers, Leiden-Boston 2010, pp. 104–105.




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passages taken from two different judgments,87 one of which was signed by the European judge and the direct effect of the provisions of EU law. CJEU in the famous Van Gend en Loos case of 5 February 1963 says: “(…) the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only member states but also their nationals. Independently of the legislation of member states, EU law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage (…)”.88 And, in what appears to be an explicit textual reference, the Panel “counterattacks”: “(…) neither GATT nor WTO has so far being interpreted as creating legally enforceable rights and obligations for individuals. Following this approach, GATT/WTO did not create a new legal order, the subjects of which comprise both contracting parties or members and their nationals.89

WTO judge rejects the idea that the Organization would constitute a new legal order comparable to that represented by EU. In other words, he does not consider it legitimate to detach himself from the text of the treaties whose interpretation presides over and add, as done by CJEU, elements not estab-lished by way of treaty. In fact, the Treaties of Rome of 1957, with which the history of the European Communities begins, did not contain any reference to human rights, included a closed list of exceptions and said nothing about the direct effect of European provisions: each of these elements it is an addition of CJEU to what can be read in the founding agreements of the Communities.90

87 M. Slotboom, at, 46.88 CJEU, 26/62, NV Algemene Transport-en Expeditie Onderneming van Gend & Loos v.

Netherlands Inland Revenue Administration of 5 February 1963, ECLI: EU:C:1963:1, ECR 00001. For details and theory see: A. Hartkamp, C. Siburgh, W. Devroe, Cases, materials and text on European Union law and private law, Hart Publishing, Oxford & Oregon, Port-land, 2017, pp. 282. K. Lenaerts, I. Maselis, K. Gutman, European Union procedural law, Oxford University Press, Oxford, 2014, p. 133. M. Wierzbowski, A. Gubrynowicz, Inter-national investment law for the 21st century, Oxford University Press, Oxford, 2015. A.H. Türk, Judicial review in European Union law, Edward Elgar Publishers, Cheltenham, 2010. L. Woods, P. Watson, Steiner & Woods European Union law, Oxford University Press, Oxford, 2017, p. 37 C. Barnard, S. Peers, European Union law, Oxford University Press, Oxford, 2017, p. 788. E. Berry, M.Y. Homewood, B. Bogusz, Complete European Union law. Texts, cases and materials, Oxford University Press, Oxford, 2013. G. Conway, European Union law, ed. Routledge, London & New York, 2015. F. Nicola, B. Davies, European Union law stories, Cambridge University Press, Cambridge, 2017.

89 Panel report, United States-Section 301–310 of the Trade Act of 1974 (US-Section 301), WT/DS152/R of 22 December 1999, par. 7.72.

90 CJEU, joined cases: 90/63 and 91/63, Commission of the European Economic Commu-nity v. Grand Duchy of Luxembourg and Kingdom of Belgium of 13 November 1964,


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The silence of the text is to be understood as a prohibition of what is kept silent. The reasoning is prima facie incongruent with the examples mentioned above, and CJEU jurisprudence seems to become coherent only if the out-come achieved in the latter case is conceived as (…) the addition of an ini-tially unforeseen ban.91 It is possible to ask whether WTO judge cannot act as his colleague in Brussels and add (or subtract) to “his” law the rules he deems appropriate. The common answer is: no, due to the provisions of art. 3.2 DSU. However, also art. 3.2 is part of WTO law, and is therefore likely to be “stolen” from the treaties, allowing a more liberal reading of the same. One can argue that an account is filling a void (with a prescription or a ban), another deleting a written and relatively clear (and very cited) provision. This is certainly true. However, I have an objection. Filling a gap does not necessarily mean filling it well. In other words, if we are sure that ignoring a written provision constitutes a modification of the treaty in question, we cannot be equally sure that filling a gap does not constitute a modification of the agreement as understood by the parties at the time of signing. Simply, in this second case it is not known—at least, not easily—if the judge is emending (or interpreting evolutionarily) or just interpreting. In a similar situation one can only answer in a circumstantial

ECLI:EU:C:1964:80, ECR 01217. For details see: J. Usherwood, S. Pinder, The European Union. A very short introduction, Oxford University Press, Oxford, 2018. J.L. Da Cruz Vilaça, European Union law and integration. Twenty years of judicial application of European Union law, Hart Publishing, Oxford & Oregon, Portland, 2014. T.H. Folsom, Principles of European Union law, including Brexit, West Academic, Minnesota, 2017, p. 278. R. Geiger, D.E. Khan, M. Kotzur, EUV/AEUV, C.H. Beck, München, 2016. M. Decheva, Recht der europäischen Union, ed. Nomos, Baden-Baden, 2018. C. Barnard, S. Peers, European Union law, Oxford University Press, Oxford, 2017, p. 586. N. Foster, European Union law directions, Oxford University Press, Oxford, 2016. A. Thies, International trade disputes and European Union liability, Cambridge University Press, Cambridge, 2013. D.A.O. Edward, R. Lane, Edward and Lane on European Union law, Edward Elgar Publishers, Cheltenham, 2013. C. Nowak, Europarecht nach Lissabon, ed. Nomos, Baden-Baden, 2011. D. Chalmers, G. Davies, G. Monti, European Union law, Cambridge University Press, Cambridge, 2014.

91 In reality, on this point we can arrive at a different solution, or rather two. First option: we start from the assumption that the judge is obliged to interpret the silence of the treaty in a non-contradictory way, without allowing and sometimes precluding entry into the system of rules that do not arise from the text that is called to interpret. However, it can be hypothesized that the rule on the interpretation of silence has in the meantime changed, transforming itself from a norm of inclusion to a rule of exclusion, or vice versa. It is a case of evolutionary interpretation of the interpretative rules. Second option: it is not certain that the differentiated (inclusive/exclusive) application of the rule on the inter-pretation of silence is necessarily inconsistent. In theory it is possible to argue that the parties intended to attribute silence of “open” character in direct effects, and “closed” on self-defense. In this case the judge abides by the will of the parties as it was or rather, as he assumes it was at the time of stipulation.




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way. And the presumption that CJEU did not limit itself, from the beginning of its activity until today, to faithfully reflect the thought of the editors of the Treaties of Rome is strong. Moreover, the resistances that this dynamic has sometimes encountered can, with a certain reasonableness, be taken to bear witness to the evolutionary nature of the interpretation made by the European judge, even if he has never presented it as such.

EU law provides a pragmatic response to those who question whether is more correct to interpret a legal instrument so as to understand whether is constitutional or not, or to start from the idea of constitution and inter-pret the instrument accordingly. EU experience teaches that this second path may be the right one in the presence of a cohesive group of states that share the same goals and are willing to sacrifice part of their autonomy for them. The community of WTO members, clearly, does not correspond to this description. Far from guaranteeing the social foundation of WTO constitu-tionalization, as some maintains, the almost universality of its membership is actually an obstacle to the factual acceptance of a strong role of Panel and Appellate Body. If these have never found the courage to read “imaginatively” the provisions of Marrakech Agreement is not because art. 3.2 DSU requires leaving the balance between rights and duties unaltered, but because they are aware that the attempt to widen the links of the constraints to which they are subjected would have aroused the disapproval of states and would therefore have resolved into a failure. The ratification of an evolutionary interpretation by the members of an international organization is, for this reason, of fundamental importance, and it is certainly no coincidence that the European ruling that has banned the countermeasures has been read as the element which has coagulated the confirmatory action of states around itself. According to this point of view, the spark of the revolution started from CJEU, but EU members allowed the innovation to take root thanks to a subsequent practice which, by virtue of art. 31 (3) (b) VCLT, has validated the interpretation of the judge.92 In other words, in the absence of a precise explanation of the interpretative ration that guided the drafting of some of CJEU decisions, it was necessary the intervention of states, whose repeated confirmation of the new

92 Something similar is supported, but with regard to the WTO, by Pauwelyn, who sees in the fact that the members of the Organization “continuously re-confirm their consent to the WTO treaty” an element in favor of evolutionary interpretation: J. Pauwelyn, The nature of WTO obligations, Jean Monnet Working Paper 1/02, p. 35. The problem is this: States parties continue to lend loyalty to a system that evolves very little, and this could indicate-contrary to what the author claims-their desire to confirm the prudent attitude of judicial bodies.


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interpretation allowed that this could be more and more easily reproposed by the supreme European jurisdiction.

6 Evolutionary Interpretation and Practice of States Parties

WTO judges have been able to deal with the theme of evolutionary interpreta-tion on a couple of occasions. This, in fact, is not a little, since the international jurisprudence on the subject is anything but copious (with the significant exception of the rulings concerning the human rights sector), and that WTO system has often been considered as a territory precluded to the application of interpretative techniques based on dynamism. It is therefore not surprising that judgments in the matter, both issued by the Appellate Body, have been the subject of a large number of articles, not all of them favorable to the conclu-sions reached by the judge of the Organization.

In speciem, the China-Audiovisual Services case93 arises from a controversy that has seen the United States and China stand in opposition, the latter being called upon to respond to alleged violations of the commitments made under WTO. What is relevant here is the extension by Panel members of the notion of “sound recordings” (audio recordings) to intangible recordings such as, for example, digitized information that is, to a practically unknown category of data reproduction at the time of China’s accession to Organization’s policing system (which took place in 2001). And this is precisely one of the reasons on which the appeal rests: in fact, China defends its behavior by supporting the impropriety of an interpretation that gives it a greater burden than it consid-ered it had taken during the negotiations. In other words, the commitments contained in the Schedule must be interpreted statically, bringing back only those goods and services that could have been taken into account at the time of its signing, and nothing more. But this statement of principle does not con-vince the second instance judge, who reiterates what was already established in the first instance by the Panel.

93 Panel report and Appellate Body report, China-Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products (China-Audiovisual Services), WT/DS362/R of 26 January 2009. For details see: P. Van den Bossche, D. Prévost, Essentials of WTO law, Cambridge University Press, Cambridge, 2016. E. Benvenisti, G. Nolte, Community interests across international law, Oxford Univer-sity Press, Oxford, 2018. M.Q. Zang, “Shall we talk? Judicial communication between the CJEU and WTO dispute settlement”, in European Journal of International Law, 28 (1), 2017, p. 277.




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In my opinion, what is most important to critically analyze is the argumen-tative path followed by the judges to reach those conclusions. Path that would be difficult to consider well traced, given the poverty of motivations to which the organ makes its judgment depend. In reading that part of the pronunci-ation dedicated to the discussion on the correct meaning of the expression “sound recordings” one has the clear impression that judges limit themselves to playing on the defensive (for example, subjecting to a mild examination the presumed errors in law committed by their colleagues in the Panel),94 and that they move in attack only to make assumptions assertively.95 And it is one of these presumptions that deserves by virtue of its becoming, now, a topos of the evolutionary interpretation of the treatises. Understandably uncertain about the originalist basis of his interpretative exercise (with which he had intended to demonstrate that GATS96 immediately made express mention of the possibility of distributing a service, that is something not tangible), and wishing to guard against possible criticism. The appeal body turns to a topic that is increasingly becoming established in international jurisprudence, and which relies on the combination of “generic concepts” and “indefinite duration of treaties”: “(…) we consider that the terms used in China’s GATS Schedule (“sound recording” and “distribution”) are sufficiently generic. In this respect,

94 The examples would be more than one. To limit ourselves to what I find most surprising, it is possible to report the response of the members of the Appeals Body to the Chinese claim of a serious reappraisal of the ordinary meaning of the terms under examination: “We do not believe that the absence of a clear explanation amounts to an error in Panel’s analysis of the meaning of the dictionary, due to its analysis”. In practice, Panel’s behavior would not be censurable because, in spite of its inability to provide solid motivations that justify the choice of one meaning at the expense of another, it shows that they have reviewed both! If these are the prerequisites, and in consideration of the overall content of this part of the sentence I find it not very important that the interpreter soon adds that “(…) are we persuaded that the panel prematurely reached conclusions (…) before ana-lyzing the relevant context and the object and purpose of GATS” (par. 357). In fact, even the analysis of context and purpose is, in my opinion, equally inadequate.

95 Judges lead to the inclusion of intangible assets in the category of “sound recordings” from the possibility provided for under art. XXVIII (b) of GATS, to distribute a service, or something intangible. Assuming that this inference is right (which I have reserva-tions about), I doubt that it can be used to base the belief that “if the Panel had based its analysis on the meanings of the terms “sound recording” and “distribution” at the time of China’s GATS Schedule” (ibid., 395). Because even if the notion of intangibility was gener-ally present since 1995, the year of the entry into force of GATS, it is not for this that China can be given a commitment concerning a good that has become (significantly) intangible only after the 2001: this asset could in fact possess characteristics that distinguish it from those for which the commitment was undertaken. Another apodictic statement, concern-ing the “dictionary meaning”.

96 C. Heidfeld, at, 142.


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we note that GATS Schedules, like GATS itself and all WTO agreements, con-stitute multilateral treaties with continuing obligations that WTO members entered into for an indefinite period of time, regardless of whether they were original members or acceded after 1995 (…)”.97

Generic terms appear in the agreement, by definition capable of assuming different meanings, and the proof that the parties intended to allow the alter-nation of these meanings over time is in fact that the treaty was stipulated to last indefinitely. If the contractual constraint disregards the contingen-cies of history, why should not the terms of which it is composed also do so? The Appellate Body itself relies on the authority of a precedent of the Inter-national Court of Justice (ICJ) (Costa Rica v. Nicaragua case)98 to endorse its claim. And, although not mentioned by the judge of commerce, we can also mention the recent arbitration award issued in the Iron Rhine case, where once again the evolution of expressions capable of supporting more than one mean-ing is made dependent on the “permanent” nature of the treaty on which the dispute is concerned.99

It does not seem correct to infer the consent that the parties would lend to the free change of meaning of their contractual obligations by a circum-stance that, also by virtue of its very common being, is rather difficult to find

97 Panel report e Appellate Body report, at, par. 396.98 ICJ, Costa Rica v. Nicaragua of 29 September 2005, Sentenza, ICJ Reports 2009, par. 66.

See from the same Court also: the 1978 Aegean Sea judgement (Aegean Sea Continental Shelf (1978) ICJ Reports 3, para 77). The concept may also have featured in three other cases: The first is Nationality Decrees Issued in Tunis and Morocco (Nationality Decrees Issued in Tunis and Morocco on Nov. 8th, 1921, PCIJ Rep Series B, No 4), where the ICC held that whether a matter is “solely within the domestic jurisdiction” of a party is “essen-tially relative” and depends “upon the development of international relations”. The sec-ond is Aegean Sea, in which the ICJ called the term “rights” a “generic term”, noting that it should “evolve in meaning” in accordance with “the development of international rela-tions”. Finally, in Gabcikovo-Nagymaros (Gabcikovo-Nagymaros Project (Hungary/Slova-kia) (1997) ICJ Reports 7), the ICJ labelled certain treaty provisions “evolving”, found that “the Treaty is not static, and is open to adapt to emerging norms of international law”, and that “current standards” of environmental protection should be taken into account. For details see: G. Nolte, “Between contemporaneous and evolutive interpretation. The use of “subsequent practices” in the judgment of the International Court of Justice concern-ing the case of Costa Rica v. Nicaragua”, in H.P. Hestermeyer, D. König, N. Matz-Lück, V. Röben, A. Seibert-Fohr, D.T. Stoll, S. Vöneky, Coexistence, cooperation and solidarity. Liber amicorum Rüdiger Wolfrum, ed. Brill, The Hague, 2011, p. 1677. M. Dawidowicz, “The effect of the passage of time on the interpretation of Treaties: Some reflections on Costa Rica v. Nicaragua”, in Leiden Journal of International Law, 24, 2011.

99 In the arbitration regarding the Iron Rhine (“IJzeren Rijn”) Railway, Belgium v. Nether-lands, Permanent Court of Arbitration May 24 (2005) 27 RIAA (2005), par. 82. For analysis see: C.J. Cheng, A new international legal order, ed. Brill, The Hague, 2016.




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a treaty that is not stipulated “indefinitely”, very little reveals about their will-ingness to accept an evolutionary interpretation. A valid inference regarding the existence of this will normally requires reliance on more explicit proba-tive material, capable of demonstrating with a greater degree of realism the (presumed) intention of states. This is what the appellate judge had done, a few years earlier, in the US-Shrimp case,100 the other example of evolutionary interpretation attributable to the WTO system. Or rather: it is as I reconstruct the ratio decidendi of that pronunciation, since the members of the organ are not too explicit about the legal bases of their reasoning. The case, perhaps the true causes célèbre in terms of dynamic interpretation (if we exclude the much more prominent jurisprudence by ICJ), once again sees the United States as an actor in court, but in an unprecedented role as “defenders of nature”. The entry into force of the Marrakech Accords allows these states to carry out the judicial process with reference to the relevant WTO provisions. As the Panel welcomes the demand from the Middle and Far Eastern countries, the United States has recourse. And it is at this point that the analysis that the appellate body regarding art. XX (g) is placed, which according to the appellant can justify the unilateral imposition of restrictions intended as measures “relating to the conservation of exhaustible natural resources”.101 What falls into this category, apparently not very problematic?

Asian states assert that the term “exhaustible natural resources” should be understood in its meaning of current use, while the United States also con-cerning living beings, to become extinct: in this view there is no doubt that the turtles are virtually “exhaustible”.102 The inter-temporal character of con-troversy fulcrum derives from the fact that logic of art. XX of that pact, which has remained unchanged in the next fifty years, cannot bear the weight of con-siderations unrelated to the mentality of its negotiators. This is not called into question by the Appellate Body, which however makes a resolutive remark, which allows it to motivate the need to read: “(…) art. XX (g) in the light of contemporary concerns of the community of nations about the protection and conservation of the environment. While article XX was not modified in the Uruguay Round (…) the importance and legitimacy of environmental protec-tion as a goal of national and international policy (…) WTO Agreement which

100 Appellate Body report, at, par. 128–129.101 The article goes on to state: “if such measures are effective in conjunction with restric-

tions on domestic production or consumption”. This assumes a very marginal importance in the ruling, and is not significant as regards the evolutionary interpretation.

102 C.J. Cheng, at, 22.


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informs not only the GATT 1994, but also the other covered agreements explic-itly acknowledges “the objective of sustainable development”.103

Because if it is true that art. XX cannot, in itself, take responsibility for any kind of protection of nature, it is equally true that such instances, or at least those, certainly not marginal, linked to the broad notion of sustainable devel-opment, have been incorporated into a preamble to its spokesman in the WTO Treaty of 1994. The inclusion of a reference to the “objective of sustainable development” testifies the commitment of the parties to take into account the change in the interpretation of the phenomena that took place throughout the life of the treaty, and to make it their own.104 The term “natural resources” is, according to the Appellate Body, a couple of generic terms, that is, “by definition, evolutionary”.105 In this case, however, unlike what occurs in the aforementioned Audiovisual Services, the perpetual nature of the treaty has not advanced as evidence of parties’ intention to allow words that “by defini-tion evolutive” change their meaning. Judges of US-Shrimp,106 however, find this desire expressed in the interest shown by WTO members in the promo-tion of the goal of sustainable development. It was added in the preamble at the end of negotiations which gave rise to Marrakech Agreement. For this rea-son, I think it is wrong to focus attention, as someone has done,107 on the legal justification of the sole recourse to an interpretation function to conventions that are not part of the Organization’s system. The use of those instruments, I think, finds in VCLT a double foundation, the first of which is only indirect, in the sense that it operates thanks to the mediation of the preamble to the agreement establishing WTO, the latter speaks of sustainable development and thus attract everything in its orbit that can help clarify the meaning of

103 Appellate Body report, US-Shrimp, at, par. 129.104 It should be noted, at least incidentally (and despite the importance of the clarification),

that none of the covenants mentioned qualifies living resources as exhaustible. In prin-ciple, it can be argued that natural resources contain the subcategory of living resources, but that the latter does not intersect that of exhaustible resources.

105 Appellate Body report, US-Shrimp, at par. 130. The judges cite the famous formula used by the International Court of Justice in the advisory opinion rendered in the case of Namibia: Legal Consequences for States of the continued presence of South Africa in Namibia (South-West Africa) despite the Security Council Resolution 276 (1970), Advisory Opinion ICJ Reports 1971, par. 53. For details see also: E. Bjorge, The evolutionary interpre-tation of treaties, Oxford University Press, Oxford, 2014.

106 Appellate Body report, at, par. 130.107 The most immediate reading is that which sees in the numerous cited conventions of

the “relevant rules of international law applicable in the relations between the parties” ex art. 31 (3) (c) of the 1969 Vienna Convention. See in argument: G. Marceau, “A call for coherence in international law: Praises for the prohibition against “clinical isolation” in WTO Dispute Settlement”, in Journal of World Trade, 33, 1999.




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that concept, including all relevant acts of international law. This is an obliga-tory step, because the conventions that are used to throw light on the broad notion of sustainability become “visible” only thanks to the instrument that calls it into question. It is therefore the legal basis of that preamble that must be identified.

Looking at the possibilities offered by VCLT, only three appear to be pos-sible alternatives.108 The first solution consists in seeing in the preamble the context of art. XX, a context in which it is possible to find the expression of the purpose and object of that provision: we are evidently referred to in the context of art. 31 (1). It should be added that this hypothesis requires that the 1994 GATT be considered as an entirely new agreement with respect to its predecessor of 1947, since the context must be stipulated at the same time as the agreement to which it refers, and not afterwards. The other two legal routes are those made practicable by the first two letters of art. 31 (3), concerning the subsequent agreements concluded in relation to the present treaty and the subsequent practice also linked to the treaty. My thesis is that, despite the three options are equally plausible and formally correct, the last one of them opens up the most interesting scenarios regarding what is of inter-est here, namely the detection of parties intention to advance the meaning of rules that bind them. Interpreting the preamble as an element of a practice following the entry into force of the treaty, and representative data of the com-mon will of the parties on the meaning to be attributed to the text, reminds us that the purpose of evolving the meaning of generic terms does not have to be linked to substantially static elements such as the permanent nature of a pact (what the Audiovisual Services case suggests) or its original context (which would derive from the choice of article 31 (1) as a legal basis), but may very well be given through that states parties adopt following the conclusion of the treaty. The preference, then, for art. 31 (3) (b) (on the subsequent practice) with respect to art. 31 (3) (a) (on subsequent agreements) is a consequence of the greater flexibility of the former. Imagine, for example, that all WTO member states today negotiate a treaty on environmental protection, explicitly engag-ing with it to promote sustainable development in all international forums. This hypothetical convention would not be relevant for the purposes of art. 31 (3) (a), because it would be very difficult, not to say impossible, to pass through a WTO agreement. On the other hand, the path of art. 31 (3) (b) would remain viable, given that the position taken by the environmental protection pact would actually be a commitment to adopt business practices compatible with

108 E. Bjorge, at, 145.


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the principle of sustainability (that is, the necessary link between practice and treaty to which it is attributable).109

According to my opinion, this is a “rationalization”, therefore, not necessar-ily adherent to judges’ thinking or consistent with the broader jurisprudential framework of the Organization. Even if it were, then, it remains to be seen how the subsequent practice of WTO members has been defined by judicial bodies of the latter. I will now review some of these topics.

7 Amendment of the Treaties and Subsequent Practice

A clue that should make us understand how the audacity demonstrated by the judge in US-Shrimp case110 could be considered rather as an undoubt-edly unconventional result of an argument in itself for revolutionary presents itself in the moment in which we try to sum up the pronunciation of China-Audiovisual Services in these terms. Appellate Body first filled many pages to show that a strictly originalist interpretation of the text could have supported the claims of the United States, and then resorted to the evolutionary argu-ment of the appeal to show that, in any case, those requests could have been satisfied in consideration of two “constituent” (contemporary) elements of the agreement: its permanent nature and presence, in it, of generic words. In the light of this subsequent case, therefore, the previous US-Shrimp case law would perhaps best be an example of using the context in an interpretative way (whether with the “context” one identifies the aforementioned preamble, or that it is traced back to it) the conventions on the protection of natural resources. It is tempting to say that judges decisions, if they are reticent on legal bases on which they are based, must be read as based on interpretative prudence: the recourse to art. 31 (3) (b) should in other words be excluded as a harbinger in power of changes to the covenant, through the inclusion of practices that have little or nothing to do with the original will of the parties. There is almost no need to remember that that article cannot or at least could

109 Someone could go further and argue that the presumption of conformity between the different obligations of a state makes it unnecessary to assume an explicitly “ubiquitous” commitment, that is valid in every area of international law. If a country binds to a given behavior by way of reason we must presume that it is aware that this act will have reper-cussions on all its previous commitments. It is superfluous to underline how this would widen the possibility of resorting to art. 31 (3) (b) in evolutionary function.

110 Appellate Body report, at, par. 130.




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not, according to the original intention of VCLT111 writers act as an entry for material unrelated to negotiators’ intention: the next practice must be a sup-port to the interpretation of a “closed” text. Nonetheless, the caution shown by the judicial bodies is understandable, since some believe that the subsequent practice is actually able to make changes to a treaty and that the interpretation “through subsequent practice of the parties arguably may have the effect” of modifying a treaty outside of formal procedures laid down in VCLT or special procedures within the treaty”.112

But can it happen in tempis? In Guatemala-Cement II the US government comes forward to remind the Panel of the content of a report previously issued under GATT 1947, in order to demonstrate that subsequent practice cannot, like acquiescence and estoppel, be a source of change in the rights and duties negotiated: “(…) the Bananas panel of 1993 (…) also rejected an EC argument that subsequent practice with respect to the banana import regimes at issue had in the complaining parties being estopped from raising such rights (…)”.113 The Panel had excluded Union’s orientation, that is, the notoriety of facts in question and tolerance towards them demonstrated for a long period of time by the parties involved (and especially those most interested in the phenome-non) could act as a basis for a change of the rights inscribed in the Agreement. The Panel has cited only two of the three legal bases from these advanced as potential (but erroneous) justifications for the failure to recognize the right of Mexico to timely notification. The first element is expunged from the term composed of subsequent practice, acquiescence and estoppel. Should we con-clude that judges, seven years after Bananas I, have changed their mind about the power of the practice of changing the treaty of which they are custodians? According to my opinion the precedent concerning the value of the subse-quent practice could not be taken seriously, the factual circumstances being very different. In the first case, there was a behavior (omissivo) extended to a large number of subjects, in the second instead, what was emphasized

111 Within the WTO system, this was recalled by New Zealand, which before the Panel in the United States-Safeguard measures on imports of fresh case, chilled or frozen lamb meat from New Zealand and Australia (US-Lamb Safeguards) argued that “the further discus-sion of ILC (…) pointed to the use of subsequent practice to resolve ambiguities or to confirm a meaning” (par. 8.17).

112 A.M. Feldman, “Evolving treaty obligations: A proposal for analyzing subsequent practice derived from WTO Dispute Settlement”, in Journal of International Law and Politics, 42, 2009, p. 667.

113 Panel report, Guatemala—Definitive Anti-Dumping Measures on Grey Portland Cement from Mexico (Guatemala—Cement II), par. 5.147. For details see: T. Rensmann, Small and medium-sized enterprises in international economic law, Oxford University Press, Oxford, 2017.


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was the attitude of a single state party. It is difficult to speak of subsequent practice that can be modifiable only if it is an expression of an authentic inter-pretation, that is to say digestible to the will of all WTO members.

In practice, the parts of the Marrakesh Agreement cannot, tout court, mod-ify the pact, not even invoking the greater force of a custom born thanks to a subsequent practice and opinius juris. Being difficult to distinguish between “simple” subsequent, ex art. 31 (3) (b) and “customary” practice, that is, in the usual conviction of the dutifulness of a certain behavior, the commercial judge could decide to assimilate the two phenomena, flattening the second on the first and denying that any attitude can affect the nature of the obligations. The treaty is immutable if not with the instruments envisaged by the same, and any interpretation objectively opposed to the meaning of its text is to be rejected. It is, as it is easy to understand, a formalist and constitutional reading of the agreement establishing WTO.114

The second option is the joint will of all the members of the Organization— manifested by means of a mixture of later practice and, eventually, acquiescence—can lead to the modification of the content of system’s rules. Then there is a third hypothesis, which differs from the second in that mere praxis cannot be used as a picklock to undermine the rules that have become unwelcome, and from the former because the respectful interpretation of the letter of the text (i.e., authentic interpretation) it does not necessarily have to go through the formal channels made available by the pact, but it can also, more simply, express itself thanks to the behavior of the parties. The only caveat, the numerical thresholds that the agreement imposes for the purposes of authentic interpretation must be respected. Of these possible solutions, what is the one describing the WTO system?

8 The Role of Institutions and Subsequent Practice

In EC-Bananas case, article 21.5 II, of 2008, the court of second instance said that it believed that: “(…) a multilateral interpretation pursuant to article IX: 2 WTO Agreement can be likened to a subsequent (3) (a) of the Vienna Convention, as at the same time the interpretation of WTO agreements

114 However, this position would have nothing to do with the apparently similar one expressed as a “regime failure”. If there the persistent refractoriness to the lex generalis is motivated by pragmatic considerations, here the suspension of the usual rules on the succession between norms has a dogmatic character.




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is concerned (…),115 recalling at the same time that article IX: 2 ‘emphasizes that such interpretations shall be used in a manner that would undermine the amendment provisions in article X’”.116 This last note is to emphasize the refer-ence made to 31 (3) (a). In fact, what was said by the Appeals Body concerning article 31 (3) (b) on subsequent agreements could be correctly repeated also with regard to the subsequent practice addressing the same purpose, which help the interpreter identify the right meaning of a provision. If the authentic interpretation of ex art. IX: 2 of the WTO Agreement resembles that reached by going in search of subsequent agreements, I really do not see why this resem-blance should be less in the case of the subsequent practice, which points in the same direction. And I add that, given this juxtaposition between art. IX: 2 of the Agreement and art. 31 (3) (b) of VCLT,117 it seems logical to think that if the first necessitates the approval of the three quarters of the members of the Organization—with the eventuality, therefore, that the remaining quarter disagrees—in order to adopt an interpretation valid and binding for everyone, the same objective can be achieved by aggregating the subsequent practice of an identical percentage of the membership.

This way of seeing things has the disadvantage of conflicting with another, famous, pronouncement of the Appellate Body, in which this traces it to the subsequent practice destined to become a common language in subsequent judgments of the judicial bodies. In the Japan-Alcohol case it is stated that the subsequent behavior of the parties must be recognized as a “concor-dant, common and consistent”118 sequence of acts and declarations, capable therefore of establishing a scheme involving states agreement. So reaching the three-quarters threshold of the members can satisfy the need for a series

115 Appellate Body report, European Communities—Regime for the Importation, Sale and Distribution of Bananas. Second Recourse of Article 21.5 of the DSU by Ecuador (EC-Bananas, Article 21.5 II),WT/DS27/AB/R of September 1997, par. 383. For details see: H. Ruiz-Fabri, “The relationship between negotiations and third-party dispute settlement at the WTO, with an emphasis on the EC-Bananas dispute”, in L. Boisson de Chazournes et al. (eds), Diplomatic and judicial means of dispute settlement, Martinus Nijhoff Publish-ers, Leiden, 2013, p. 88. S. Shlomo Agon, “Non-compliance recognition and justice in inter-national adjudication: WTO perspective”, in Global Constitutionalism, 5 (2), 2016 p. 240. M. Trebilock, R. Howse, A. Eliason, The regulation of international trade, ed. Routledge, London & New York, 2013, p. 820. A. Bahri, Public-private partnership of WTO dispute set-tlement. Enabling developing countries, Edward Elgar Publishers, Cheltenham, 2018.

116 Appellate Body report, Japan-Alcohol, at, 12–13. See for details: C.A. Melischek, The rel-evant market in international economic law: A comparative antitrust and GATT analysis, Cambridge University Press, Cambridge, 2013, p. 70.

117 E. Bjorge, The evolutionary interpretation of treaties.118 Appellate Body report, Japan-Alcohol, at, 12.


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of common and coherent actions. This is opposite to that expressed by the panel of US-Zeroing case: “(…) even if the documentation provided by the European Communities was relevant as evidence of “practice” within the meaning of article 31 (3) (b) of the Vienna Convention, that practice does not establish the “agreement between the parties regarding the interpretation of article 2.4.2 (…)”.119

The demonstration, by even one state, of a convinced opposition to an attitude shared by a large majority towards a norm is, in itself, sufficient to deprive this practice of the value of agreement. The analogy with the process of formation of customary law is valid. It is now established that the lack of behavior of a small number of states is not able to prevent long the creation of a custom supported by the compliant action of the vast majority. Replicat-ing that the system of WTO may have departed from this principle is not con-vincing, since if there was an exception, its direction is that of facilitating the decision-making process. While at the general level, in fact, there is a postulate according to which the interpretation of a juridical instrument must gather the assent of all the parties involved, the fact that art. IX: 2 imposes a much lower threshold testifies to negotiators willingness not to allow minorities of “persistent objectors” to bar the road to the assumption of decisions in the matter of interpretation.

But that’s not all, because the judges of Japan-Alcohol go further and, in denying that the adoption of a Panel’s report can be considered expression of a subsequent practice, they add that “(…) the fact that such an “exclusive author-ity” in interpreting the treaty (i.e. the one descending from article IX: 2 of the Establishment Agreement of WTO) has been established in WTO Agreement is reason enough to conclude that such authority does not exist by implication or by inadvertence elsewhere”.120 The power of authentic interpretation, there-fore, is for the court of appeal an exclusive right of the organs charged to it by the Marrakech Agreement, namely Ministerial Conference and General Coun-cil. Naturally, what the letter of art. IX: 2 assigns exclusively to Conference and Council is the possibility to assert erga omnes, and in principle, the interpreta-tive act that has been reached in compliance with the procedures provided for in the article itself. This, moreover, is clarified in a subsequent pronounce-ment by the same organ, which in summarizing the words of Japan-Alcohol

119 Panel report, United States—Laws, Regulations and Methodology for Calculating Dump-ing Margins (“Zeroing”) (US-Zeroing), WT/DS350/AB/R of February 2009, par. 7.218. For details see: A. Kamperman Sanders, The principle of national treatment in interna-tional economic law. Trade, invest and intellectual property, Edward Elgar Publishers, Cheltenham, 2014.

120 Appellate Body report, Japan-Alcohol, at, par. 13.




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summarizes its meaning: we are mindful that the Appellate Body (…) cau-tioned that relying on “subsequent practice” for purposes of interpretation must not lead to interference with the “exclusive authority” of Ministerial Con-ference and General Council to adopt interpretations of WTO agreements that are binding on all members (…)”.121

Consequently, the “reserved domain” of Conference and Council can be interpreted as follows: in the sense that where the political bodies identified by art. IX: 2 have pronounced themselves by adopting an authentic interpreta-tion, the judicial bodies must take a step back and refrain from making deci-sions contrary to that act. In other words, a hierarchy that sees the official interpretation ex art. IX: 2 prevail over that of Panel and Appellate Body, even if the latter is based on elements subsequent to the act of authentic interpre-tation.122 For this reason, the prohibition of interference to which trade judges refer cannot be interpreted as a prohibition of action, but at most as a limi-tation of the field of this. The interpreter will be able to operate freely in all those cases—on closer inspection, almost all—in which an official interpreta-tion is not available. Based on these simple considerations I feel I can infer in more detail the hypothetical operation of art. 31 (3) (b) within the framework of Panel and Appeals Court’s judicial activity. In my opinion it is in fact pos-sible to argue that, in the absence of authentic interpretation validated by the political bodies, the subsequent practice necessary to resolve a case brought before the court may also be attributable to a number of members less than three quarters, provided no (vocally or factually) opposition. In this way, we would witness a realignment to general international law, which does not set fixed thresholds for the finding of an agreement: a practice of a certain weight and welcomed by the indifference of those who are not its author lends itself, in principle, to demonstrate the existence of converging will. On the other hand, the percentage threshold would be fully operational if the Conference or the Council had expressed an authentic interpretation: in such circumstances only the aggregation of the three-quarters of the states parties would allow this time, however, also in presence of open dissent, to ignore the official act adopted to ex art. IX: 2. The hypothesis I have formulated here has the disad-vantage of being in apparent conflict with a ruling by the Appellate Body. This provides the starting point for a brief examination of the question.

121 Appellate Body report, EC-Chicken Classification, at, par. 273.122 P. Van den Bossche, W. Zdouc, at, 29.


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9 Next Practice and Silence

In Chile-Price Band System the appellate judge affirms that no state party has demanded the conversion of measures taken by another member into ordi-nary customs duties. This does not imply immunity from the judicial bodies for such measures.123 This established the impossibility of considering silence towards a given behavior as an expression of subsequent practice (as a valida-tion of that behavior). If this is true, my theory on the possibility of making decisions based on art. 31 (3) (b) involving the action of less than three quarters of membership appears at first sight compromised. One cannot resort to the silence of those who do not participate in the subsequent practice to corrobo-rate the latter. But things are not like that. It is not about reaching the 75 per cent threshold of the members. The proponents of the practice can actually be fewer without this affecting its validity. Interpretation for subsequent practice pursuant to art. 31 (3) (b) VCLT124 and the authentic interpretation pursuant to art. IX: 2 Marrakesh Agreement operate in fact for different purposes. If the former gives the rules a sense limited to the concrete case under examination, the latter imposes a meaning that can be opposed on any occasion against any state party; the first yields, that is, when the second comes into being. The existence of closer links to the adoption of an authentic interpretation is thus fully justified, namely the (potential) involvement of a larger number of mem-bers and compliance with procedures aimed at guaranteeing the publicity of decision-making process.

At this point emerges a problem closely related to the interpretation of silence. And this can be illustrated by starting from this question: the vote expressed by states within the Organ for the resolution of disputes—the one with the power to adopt or reject the Panel and the Appeals Committee—can count as praxis for the purposes of art. 31 (3) (b)? As mentioned above, although en passant, in the Japan-Alcohol case the hypothesis that the adop-tion of a Panel’s report (but there is no doubt that the speech is also valid for the Appeal Body) may act as an element of subsequent practice. It goes with-out saying, however, that the acceptance of these conclusions entails a vicious circle: if what is established by one of the judicial organs of the system cannot act as a precedent, because to think that a decision in this sense is an obstacle to the assertion of a contrary thesis? In fact, this would not mean anything

123 Appellate Body report, Chile-Price Band System and Safeguard Measures Relat-ing to Certain Agricultural Products (Chile-Price Band System), WT/DS207/AB/R of 23 September 2002, par. 212.

124 O. Dörr, at, 165.




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other than giving it a previous value. WTO judges have always tended to do, and also extensively: this is shown by a careful study of their behavior, which reveals that in the Organization there is a real de facto decision. This depends on the specific need of each legal system to guarantee at least a minimum level of judicial uniformity, preventing the jurisprudence from being overturned frequently and without good reason. For this reason a pragmatic approach supports a theoretical consideration: the discovery of traces of subsequent practice in the relationships adopted by the Dispute Settlement Body (DSB) means that the interpretation contained therein acquires importance even in the absence of a system that recognizes the value previous to the decisions of Panel and Appellate Body. Precisely for this, however, we must pay attention to the error that drives I. Van Damme to say: “(…) leaving aside the political impri-matur needed to adopt panel and Appellate Body decisions, the propositions that decisions of international courts and tribunals can qualify as subsequent practice does not sit comfortably. The underlying reasoning is self-referential because it accepts that a court or tribunal uses subsequent practice generated by its own decisions to interpret another treaty provision or confirm its own interpretations (…).125

The political imprimatur” cannot be set aside because it is precisely what, in my opinion, constitutes the next practice! In principle, it is not the issue of the relationship that gives rise to a practice pursuant to art. 31 (3) (b), but the indi-vidual votes expressed within the Body for the resolution of disputes. This is the point of conjunction with the question of silent interpretation. In a meeting in which the decision on the adoption of a relationship is taken through negative consensus (therefore, thanks to a mechanism for which approval requires only one vote), it is natural to ask what value can be attributed abstention of a large majority.126 I believe that the answer can only be: no value. The favorable vote of the only beneficiary of the relationship, wrapped up in the indifference of all the others, cannot coagulate around the document the subsequent prac-tice necessary to assert its content in future cases presented to the judges of commerce.127 I would like to stress that this conclusion is linked to an entirely

125 R. Bhala, “The myth about “stare decisis” and international trade law (part one of a tril-ogy)”, in American University Trade Law Review, 14, 1999, p. 878. R. Bhala, “The precedent setters: “De dacto” “stare decisis” in WTO adjudication (part two of a trilogy)”, in Journal of Transnational Law and Policy, 11, 1999. R. Bhala, “The power of the past: Towards “de jure “stare decisis” in WTO adjudication (part three of a trilogy)”, in George Washington International Law Review, 33, 2001.

126 I. Van Damme, at, 342.127 The usual limitation applies: the subsequent practice orients the future cases until the

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contingent factor, what is the attitude of members towards the voting proce-dure in force in DSB. If a “spirit” different from the current one were to take hold, and states representatives to the Body began to vote explicitly for or against the adoption of a report (rather than refrain from the conviction of the irrelevance of their intervention), it would become possible give the vote a weight in the calculation of the subsequent practice. In this way, support achievement of the three quarters of the assembly would even allow a rela-tionship to boast the qualification of authentic interpretation.

10 Next Practice and Relevant Community

So far we have seen an attempt to solve the quantity problem of indispens-able members in order to activate art. 31 (3) (b) VCLT.128 However, the theme of “quality” of those members is also interesting. In fact, it sometimes hap-pens that the provision to be interpreted is relevant only for a small circle of states parties, and that therefore only a subset of the entire membership is likely to be involved in the implementation of a certain practice. In such a case, using the whole community of WTO as a parameter can easily be perceived as unfair. But is it permissible to restrict the scope of analysis and take into con-sideration only the states with interests? The answer is not easy, because WTO judges have expressed themselves (to my knowledge) only once-and in no way conclusive-and it is therefore necessary to marry an inductive approach. So let’s start from the sentence I mentioned. In Canada-Patent the United States, after reading the interim report circulated between the parties involved, ask the Panel to rectify the content of a note in which the judges claimed that the measures taken by six members of the Organization could not be configured as a later practice. Those six countries—say the United States—are almost all of those (seven, the only exception being the defendant in court) whose legis-lation did not comply with the dictates of TRIPS Agreement at the time of its stipulation. Therefore, the member practice is practically unanimous.129 In a reply that seems vaguely embarrassed, the Panel tries to accommodate the matter: “(…) we wish first to emphasize that we did not make a finding that there is no “subsequent practice, (…) there is insufficient evidence before us to make a determination as to whether there is a “concordant, common and consistent” sequence of acts to sufficiently establish a “discernable pattern

128 O. Dörr, at, 165.129 P.L. Judd, “Toward a TRIPS truce”, in Michigan Journal of International Law, 32, 2011,

pp. 614, 642.




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implying parties agreement” in respect of making available a term of protec-tion as required by article 33 of TRIPS Agreement (…). We do not consider necessary to determine the requirement under article 33 of TRIPS Agreement (…).130

Judges prefer to avoid expressing themselves in this regard. However, the acceptance of US request suggests that the idea of a different weight of prac-tice according to its author is by no means implausible. And the hypothesis is supported by the consideration of another trace that can be found in WTO jurisprudence. In EC-Computers case, the Appellate Body is to comment on the work of the Panel that preceded it, which had given some importance to the fact that Ireland and United Kingdom were the two largest markets for LAN equipment of US origin. In rejecting this remark, the appellate court claims that EU, as a customs union, cannot present its own market as a sum of distinct entities.131 It was therefore suspected that the commercial position of WTO members could be taken into account as a criterion for the assessment of subsequent practice.

WTO has repeatedly voiced the demands of a justice that is not only pro-cedural but rather substantial. In EC-Tariff Preferences case, for example, the Appeals Body has asserted the need to interpret the enabling clause (the law that guarantees special treatment to developing countries) by reminding that the needs of Third World countries they do not everywhere identical: read the provision, that “treats different developing-country beneficiaries differently”.132 Words very similar to those always pronounced by the Organ in the aforemen-tioned US-Shrimp case, where the judges censure US behavior by telling them to adopt measures that do not distinguish between the different conditions of the affected states:”(…) we believe that discrimination results not only when countries in which the same conditions prevail are differently treated, but also when the application of the measure at issue does not allow for any inquiry the conditions prevailing in those exporting countries (…)”.133

130 Panel report, Canada—Term of Patent Protection (Canada-Patent), WT/DS170/R of 5 May 2000, par. 5.5. For analysis see: M.D. Froese, Canada at the WTO: Trade litigation and the future of public policy, University of Toronto Press, Toronto, 2010. p. 173. S. Frankel, Test tubes for global intellectual property issues, Cambridge University Press, Cambridge, 2015, p. 86.

131 Appellate Body report, European Communities—Customs Classification of Certain Computer Equipment (EC-Computers), WT/DS269/R of 30 May 2005, par. 96.

132 Appellate Body report, European Communities—Conditions for the Granting of Tariff Preferences to Developing Countries (EC-Tariff Preferences), WT/DS246/R of 1st Decem-ber 2003, par. 162.

133 Appellate Body report, US-Shrimp, at, par. 165.


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In other words, treat equals equally. But to find a subsequent practice that proves the existence of an agreement also involving those states that, for the situation in which they are in fact, completely extraneous to the provision con-sidered does not mean to treat different in an equal way? If this is true, it is advisable that organization’s judicial organs carefully evaluate the issue, so as not to trample on the principles they themselves have expressed.

11 Concluding Remarks

It is difficult to make an overall assessment of the way WTO uses evolutionary interpretation. This is primarily due to the scarcity of material. In fact, only a couple of sentences deal directly with the issue. And even if the adhesion of the Organ of Appeal to interpretive criteria born elsewhere—where there are likely to be different needs—and in my opinion non satisfactory (I refer to the automatic change of meaning of the terms “by definition evolutionary”)134 does not make the rulings of WTO judges particularly meaningful. All this is made even more complicated by the ambiguous nature of the Organization, whose constitutional character has been repeatedly affirmed but never pre-cisely clarified, neither by the doctrine nor by the jurisprudence of the com-petent bodies.

At first the temptation is to affirm that WTO has a “rigid constitution”135 in the sense that its norms cannot be modified except according to the modali-ties foreseen by the constitution itself. Among these modes do not appear the decisions taken by the Body for the resolution of disputes. Nothing strange, one would say, since art. 3.2 DSU does nothing but establish the impossibil-ity of amending the rules of the system in an interpretative way. However, it has been seen that the very idea of changing rules is problematic, and the legal texts on which the system is based help to create confusion with their distinction between amendments that imply or not a change in the rights and duties of the parties. If the prohibition imposed by art. 3.2 aims to prevent the balance between these rights and duties from being compromised, it follows that the interpretations that respect it are to be considered authorized. The regime of WTO is perhaps more open than it may seem at first glance, and

134 Id., at, par. 130. Legal Consequences for States of the continued presence of South Africa in Namibia (South-West Africa) despite the Security Council Resolution 276 (1970), Advisory Opinion ICJ Reports 1971, par. 53.

135 A. Lang, “Twenty years of the WTO appellate body’s “fragmentation jurisprudence”” , in Journal of International Trade Law and Policy, 14 (3), 2015, p. 118.




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its boundaries must be traced along those that define, precisely, states parties rights and obligations. The expression is so vague that it is impossible—in the absence of an explicit stance on the part of the judicial bodies or members of the Organization—to resolve the question, at least without establishing a priori what the outcome of the investigation should be. The identification of the rights and duties of states requires in fact a pre-understanding of these, since the latter correspond to legitimate actions capable, virtually, of influenc-ing the meaning of norms.

The problem is the same vicious circle that has been said about the estab-lishment of the WTO, when it was asked whether the behavior of the parties should be interpreted to check the instrument that is in front of us constitu-tional (and the way it is), or whether it is permissible to start from the idea of constitution to judge—that is, to “interpret”—the acts of states as legiti-mate or not. This discourse directly affects the notion of subsequent practice as understood by art. 31 VCLT, i.e. on the admissibility of state behaviors for interpretation purposes.

However, there are certain signs, of which it is difficult to understand the real extent. The cases of evolutionary interpretation of WTO rules show that judges are willing to give, under certain circumstances, values and interests unrelated to the bundle of rights and obligations of states, or at least to inte-grate them. For the moment these interests (sustainable development) have found a clear support in the text of the treaties. We will see in the future if this approach will be confirmed or even strengthened, with the opening of the system of non-commercial nature and not attributable to the exceptions pro-vided for by art. XX.136

One last objection remains to clear the field. So far I have assumed that every legal context is potentially able to develop its own specific method of interpre-tation. I have supported it in the case of WTO after having investigated its inter-pretative practice, and I have hypothesized it valid in all the other cases, even if they have only been studied superficially. The point is debated, however, as some say that in reality there is only one hermeneutical canon, the one estab-lished by articles 31 and 32 VCLT,137 and that any other method is traceable to that. A careful reading of courts sentences belonging to this or that system would thus reveal the common matrix of the interpretive practices adopted.138

136 B. Hoekman, “Proposals for WTO reform: A synthesis and assessment”, in Minnesota Journal of International Law, 20, 2011, p. 326.

137 O. Dörr, at, 530.138 M.T. Kamminga, M. Scheinin (a cura di), The impact of human rights law on general

international law, Oxford University Press, Oxford 2009.


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I am convinced that this is true to the extent that the 1969 Convention pre-scribes such open and articulated rules that there is room for every possible approach. I also believe that the existence of different methods originating from the same root is a simple consequence of a: “(…) “reasonable understand-ing of the “object and purpose” of the respective treaty when applying the gen-eral rule laid down in art. 31 (…)”.139 In my opinion, however, this fact does not in any way disqualify the idea that international courts really adopt different approaches to interpretation, and the emphasis it places on consensus is eas-ily traceable to notion of subsequent practice, but this does not remove the fact that no other supranational jurisdictional body, including those of human rights, adopts the principle of the margin of appreciation in a systematic and coherent manner (based on consensus). I can thus summarize the attempt to extend the results that I have reached to the fields of law that have not been analyzed here: the idea that they allow, or even require, the use of peculiar (possibly evolutionary) interpretative tools cannot be excluded in line in prin-ciple, since it seems to me undeniable that from the provisions which VCLT dedicates to interpretation can derive hermeneutical approaches ergenti, attributable to the characteristics of the sector to be interpreted. Nevertheless, factual obstacles make the task at least difficult.

139 O. Dörr, at, 536.


evolutionary, dynamic or contemporary interpretation in

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